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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION - MAHIKENG
CASE NO: 4758/2024
Reportable: No
Circulate to Judges: No
Circulate to Magistrates: No
Circulate to Regional Magistrates: No
In the matter between:
JOZE MALETA 1st APPLICANT
SOUTH AFRICAN GEOMATICS INSTITUTE 2nd APPLICANT
and
CITY OF MATLOSANA LOCAL
MUNICIPALITY 1st RESPONDENT
THE SOUTH AFRICAN COUNCIL OF
PLANNERS 2nd RESPONDENT
THE SOUTH AFRICAN PLANNING
INSTITUTE 3rd RESPONDENT
THE MINISTER OF THE DEPARTMENT
OF AGRICULTURE, LAND REFORM
AND DEVELOPMENT 4th RESPONDENT
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail. The date that the judgment is deemed to be handed
down is 10 MARCH 2026 at 10h00.
ORDER
(i) The application is dismissed.
(ii) The first and second applicants are ordered to pay the costs of the
application jointly and severally, one paying the other to be
absolved on a party and party scale, including the costs of counsel
on scale “C”.
JUDGMENT
MASIKE AJ
INTRODUCTION
[1] The controversy in this application stripped of the details is about
whether the City of Matlosana Local Municipality (“the first respondent”)
could introduce a by -law which prescribed applications in terms of the
Land Use Scheme of the first respondent may only be submitted by
registered planners in terms of the Planning Professions Act 36 of 2002
(“the PPA”) when the South African Council for Planners (“SACPLAN”)
has not prescribed the areas of planning work to be reserved for each
category of registered persons in terms of the PPA. Mr Joze Maleta (“the
first applicant”) and the South African Geometics Institute (“the second
applicant”) approached this Court and s ought an order in the following
terms:
“1. That the forms and services provided for in the Rules in the above Honourable
Court be dispensed with and that the matter be treated as an urgent application
in terms of the provisions of Rule 6(12) of the Uniform Rules of Court;
2. That registration with the South African Council for Planners alternat ively
registration in terms of the provisions of the Planning Profession Act, Act 36
of 2002 is not a prerequisite for launching, advancing or dealing with a land
development application or consolidation of land or any deviation from the
land use or uses permitted in terms of an applicable land use scheme;
3. That section 11.1.1 and 11.1.1(a) of the Land Use Scheme be declared
unconstitutional and invalid;
4. No order as to costs, subject thereto that this Application does not become
opposed; and
5. Further and or alternative relief.”
[2] The first applicant is a major male person and a registered professional
land surveyor. According to the affidavit deposed to by the first applicant,
the second applicant, is a national voluntary association recognized as
such by the South African Geomatics Council in terms of s 18 of the
Geomatics Professions Act, Act 19 of 2013 with its offices situated at
Unit 1 […], B […] G[…] 2, Hydrangea, PI, Glen Hills, Durban North,
Kwa – Zulu Natal Province, 4051.
[3] The application is opposed by the first respondent, the South African
Council for Planners (“the second respondent”), and the South African
Planning Institute (“th e third respondent). The application was initially
set down for hearing in the urgent court on 17 October 2024. On 17
October 2024, the application was before Mfenyana J, who postponed it
to 2 May 2025 for argument. Due to the postponement of the application
on 17 October 2024, when the application was argued before this Court
on 2 May 2025, this Court was not addressed on the issue of urgency. The
question of urgency has fallen away following the postponement on 17
October 2024.
BACKGROUND FACTS
[4] The first applicant alleges that on 16 February 2021, he submitted a n
application on behalf of his client to the first respondent. The application
was considered by the Municipal Planning Tribunal (“MPT”) of the first
respondent. The first applicant appeared before the MPT to motivate the
application. The application submitted by the first app licant to the first
respondent was for land development.
[5] During the hearing of the application, the MPT enquired whether the first
applicant was registered with SACPLAN. The first applicant is registered
as a Land Surveyor in terms of s 10 of the Klipfontein Organic Products
Corporation Act, Act 41 of 1950, and he is registered as a member of the
Institute of Land Surveyors of the Transvaal. In addition, the first
applicant was admitted as a Professional Land Surveyor by the South
African Council for Professional Land Surveyors on 10 September 1984.
Land Surveyors are also referred to as Geomatic Professionals in terms of
the Geomatics Professions Act1.
1 s 1of Act 19 of 2013.
[6] The first applicant is not registered under s 13(1) of the PPA with
SACPLAN. For the first applicant to be registered under s 13(1) of the
PPA, the first applicant must be registered as either (a) a candidate
planner2, (b) technical planner3 or professional planner4.
[7] The client's application was not considered by the first respondent. The
first respondent stated that the first applicant was not registered with the
PPA, which affected the locus standi to lodge the ap plication with the
first respondent and the first applicant’s appearance before the MPT when
the first applicant was making submissions in support of the application.
[8] From the reading of the founding affidavit deposed to by the first
applicant, this would not be a one-off incident. The first applicant applied
on behalf of a nother client for the consolidation of two erven in
Jouberton. The client of the first applicant provided him with a written
special power of attorney. The application was submitted on 30
September 2021 with the first respondent.
[9] On 21 December 2021, the first applicant received a letter from the first
respondent, which read, amongst others, that the first respondent sought
from the first applicant the following additional information, (a) a
declaration that the first applicant in practicing and performing any work
including the application is not contravening the provisions of s 13(2) of
the PPA and (b) proof that the first applicant is registered in one of the
categories specified in s 13(1)(a)-(b) of the PPA.
2 s 13(1)(a) Act 36 of 2002.
3 s 13(1)(b) of Act 36 of 2002.
4 s 13(1)(c) of Act 36 of 2002.
[10] The first applicant replied to the first respondent's letter on 18 January
2022. There was no response from the first respondent. In the first
applicant's response, he asserted that he was not contrav ening s 13(2) of
the PPA, as no work is reserved for the lodgement of the application in
the matter. The first respondent, having failed to reply to the first
applicant's letter dated 18 January 2022, the first applicant sent a second
letter dated 27 Janua ry 2022. In that letter, the first applicant argued that
the letter of the first respondent of 21 December 2021 is unconstitutional
and illegal, and concluded by advising the first respondent to proceed
with the application for consolidation.
[11] No response came from the first respondent. The first applicant sent yet
another letter dated 14 June 2022. The first respondent replied to that
letter; the response, dated 27 June 2022, stated, amongst others, that the
first applicant is in contravention of s 13(2) of the PPA.
[12] The first applicant received a letter from the first respondent dated 19
August 2022, which related to another application submitted by the first
applicant on behalf of a client to the first respondent. In that letter, the
first res pondent requested that the first applicant provide proof that the
client had authorized the first applicant to act on its behalf and that the
first applicant is registered under the PPA. The first applicant elected not
to respond to this letter and instead approached the court for relief by way
of an application under case number M23/24. The application under case
number M23/24 was opposed by the first respondent, and answering
papers were filed. According to the first applicant, there was an attempt to
settle the matter under case number M23/24 between the parties, but
nothing came of this. This contention is denied by the first respondent.
The application under M23/24 was subsequently withdrawn.
[13] On 19 October 2023 , the first applicant received the digital date of the
new City of Matlosana Land Use Scheme, 2023 (“CMLUS, 2023”).
CMLUS, 2023, was advertised on 28 March 2023 in the Government
Gazette for a period of 60 days. For reasons unrelated to this application,
the first applicant did not resp ond to the advertisement. CMLUS, 2023,
was approved in the Gazette on 29 August 2023.
[14] The first applicant sought a meeting with the first respondent to discuss
pending applications submitted by the first applicant on behalf of his
clients. It was wh en the first applicant requested a meeting on 23
February 2023 that he was informed of the restrictions on submitting
applications under Chapter 11, s 11.1.1 and ss 11.1.1(a) of CMLUS, 2023.
That section reads as follows:
“11.1 Planning Applications
11.1.1 Application in terms of this land use scheme may only be submitted by:
(a) Registered planners in terms of the Planning Profession Act 2002 (Act
36 of 2002).”
[15] The first applicant was of the view that the restrictions imposed in
Chapter 11, s 11.1.1 and ss 11.1.1(a) of CMLUS, 2023, offend against ss
11.3.1 of CMLUS, 2023, the by-law of 2016 of the first respondent , or
the main Spatial Planning and Land Use Manage ment Act, Act 6 of 2013
(“SPLUMA”). According to the first applicant, he attempted to resolve
the impasse between himself and the first respondent without resorting to
litigation. Meetings were held between the legal representatives of the
first applicant and the first respondent. The last communication received
from the attorneys of the first respondent was on 20 June 2024, when the
attorneys of the first respondent indicated that the first respondent does
not agree with the contentions of the first applicant so far, as it relates to
Chapter 11, s 11.1.1 and s s 11.1.1(a) of CMLUS, 2023, and the
contradiction with other legislation.
[16] It is the case of the first and second applicant that there is no reservation
of work for categories as contemplated in terms of s 13(2) of the PPA and
that Chapter 11, s 11.1 .1 and ss 11.1.1(a) of CMLUS, 2023 is
unconstitutional as it amounts to an unjustifiable limitation of the right to
freedom of trade a nd profession protected by s 22 of the Constitution of
the Republic of South Africa of 1996 (“the Constitution”).
[17] The contention of the first applicant that no work is reserved for
registered planners is b ased on the fact that SACPLAN and the Minister
of the Department of Agriculture, Land Reform and Development (“the
fourth respondent ”) have yet to gazette the list of reserved work as
contemplated in the PPA. This argument by the first applicant is based on
the reading of s 16(1), (2), (4) read with s 30 (1)(a), and 30(2)(a) of the
PPA. s 16 of the PPA reads as follows:
“16 Identification of planning profession work
(1) The Council must consult with all voluntary associations and any person, body
or industry determined by the Minister regarding the identification of certain
areas of planning work to be reserved for registered persons, including work
which may fall within the scope of any other profession.
(2) After such consultation, the Council must prescribe the areas of planning work
to be reserved for each category of registered persons.
(3) A person who is not registered in terms of this Act, may not-
(a) perform any kind of work reserved for any category of registered
persons;
(b) pretend to be, or in any manner hold himself or herself out or allow
himself or herself to be held out as, a person registered in terms of
this Act; or
(c) use the name of any registered person or any name or title referred to
in section 13 (1).
(4) Notwithstanding the provisions of subsections (2) and (3), the Council
may identify certain areas of work which may be carried out by
persons registered in terms of other legislation, without subjecting such
persons to the prohibitions contained in subsection (3).
(5) The provisions of this section may not be construed as prohibiting any person
from performing work reserved, if such work is performed in the service of or
by order of and under the direction, control, supervision of or in a formal
association with a registered person entitled to perform that reserved work and
who must assume responsibility for any work so performed.” (own
underlining)
[18] s 30 of the PPA reads as follows:
“30 Regulations and rules
(1) (a) The Minister may, by notice in the Gazette, make regulations, not
inconsistent with this Act, with regard to-
(i) any matter that he or she is required or permitted to prescribe in
terms of this Act;
(ii) generally, all matters necessary for or incidental to the exercise of
the powers and the performance of the functions of the Council;
and
(iii) any other matter for the better execution of this Act.
(b) The Minister must, before making any regulation under subsection (1),
publish a draft of the proposed regulation, repeal or amendment in
the Gazette together with a notice calling on interested persons or
voluntary associations to comment in writing within a period not less
than 30 days from the date of publication of the notice.
(c) If the Minister alters the draft regulations as a result of any comment,
he or she needs not publish those alterations before making the
regulations.
(2) The Council may, by notice in the Gazette, make rules not inconsistent
with this Act, with regard to-
(a) any matter it is required or permitted to prescribe in terms of
this Act;
(b) the form of process and the procedure at or in connection with
the proceedings of a disciplinary tribunal or the Appeal Board;
(c) the representation of any party before the Appeal Board;
(d) generally all matters necessary for or incidental to the
exercise of the powers and performance of the functions of a
disciplinary tribunal and the Appeal Board; and
(e) the fees payable in respect of the lodging of an appeal under
this Act and the copying or transcription of records of a
disciplinary tribunal or Appeal Board.
(3) (a) Before the Council makes, repeals or amends any rule under this
section, it must publish a draft of the proposed rule, repeal or
amendment in the Gazette together with a notice calling on interested
persons and voluntary associations to comment in writing within a
period not less than 30 days from the date of publication of the notice.
(b) If the Council alters the draft rules as a result of any comment, it needs
not publish those alterations before making the rule.
(4) The Council may, if circumstances necessitate the immediate
publication of a rule, publish that rule without consultation as
contemplated in subsection (3): Provided that any person who objects
to the said rule may-
(a) comment after such publication; or
(b) appeal to the Appeal Board against such a rule.” (own
underlining)
[19] It is the argument of the first applicant that the effect on s 13 and 16 of
the PPA when read with s 16(1), (2), (4) , s 30 (1)(a), and 30(2)(a) of the
PPA is clear. Unless, in terms of the PPA, work has been reserved by
SACPLAN for any of the categories referred to in s 13(1) of the PPA, a
person may practice in or perform such work. SACPLAN must prescribe
the areas of planning work to be reserved for regis tered planners by way
of rules made by SACPLAN in order for there to be a prohibition in
respect of any work done other than by registered planners.
[20] SACPLAN has not, in terms of the PPA, reserved any work for any
categories referred to in s 13(1) of the PPA. SACPLAN has not made
specific rules regarding the reservation of work, and the fourth
respondent has not made any regulations in this regard. It is not in dispute
between the parties that the fourth respondent has not made the
regulations as stated by the first applicant, nor that SACPLAN has not
made rules regarding the reservation of work.
[21] s 13(1) and (2) PPA reads as follows:
“13 Registration of persons
(1) The categories of registered persons are-
(a) candidate planner;
(b) technical planner; and
(c) professional planner.
(2) A person may not practise in or perform any work, whether for reward or
otherwise, which is reserved for any of the categories referred to in subsection
(1) unless he or she is registered in that category and unless such practice or
performance is supervised as may be required.”
[22] The first, second, and third respondents have opposed the application and
filed their answering affidavits. The grounds of opposition of the first,
second, and third respondents are similar. The first, second , and third
respondents contend that the provisions of Chapter 11 , s 11.1.1 and s s
11.1.1(a) of the CMLUS, 2023 , do no t offend against ss 11.3.1 of
CMLUS, 2023, the by-law of the first respondent of 2016, or SPLUMA.
[23] The first, second, and third respondents contend that Chapter 11, s 11.1.1
ss 11.1.1(a) of CMLUS, 2023 does not restrict any person from
submitting a planning application but simply sought to align the
Municipality’s Land Use Scheme with the requirements of s 13(2) read
with s 16(3) of the PPA.
[24] It is the further case of the first, second, and third respondents that, in
response to the contention by the first applicant that there is no work
reserved for persons registered as professional planners with SACPLAN
under s 13 of the PPA, that contention is fundamentally flawed and
misplaced.
[25] The first, second, and third respondents rely on s 2(a) of the PPA to
counter the first applicant's argument. The first, second, and third
respondents contend that s 2(a) of the PPA provides a clear indication of
the work performed and services rendered by a professional planner. s 2
of the PPA reads as follows:
“2. The following principles apply to the Council and all registered persons and
must guide the interpretation, administration and implementation of this Act:
(a) Planning and the planning profession are areas of expertise which
involve the initiation and management of change in the built and
natural environment across a spectrum of areas, ranging from urban to
rural and delineated different geographic scales (regio n, subregion,
town, village, neighbourhood), in order to further human development
and environmental sustainability, specifically in the fields of-
(i) the delimitation, regulation and management of land uses;
(ii) the organisation of service infrastructure, utilities, facilities
and housing for human settlements; and
(ii) the co -ordination and integration of social, economic and
physical sectors which comprise human settlements, through
the synthesis and integration of information for the preparation
of strategic, policy, statutory and other development plans
within the South African development context.
(b) Planning must pursue and serve the interests of the public to benefit the
present and future generations.
(c) The Council and the planning profession must-
(i) strive to achieve the transformation legitimacy and
effectiveness;
(ii) strive to achieve high standards of quality and integrity in the
profession;
(iii) promote the profession and pursue improvements in the
competence of planners through the development of skills,
knowledge and standards within the profession; and
(iv) promote environmentally responsible planning which will
ensure sustainable development.” (own underlining)
[26] The first, second, and third respondents rely on the reading of s 13(2)
read with 16(3) and s 2(a) of the PPA to show that the PPA has given a
clear indication of the work and services rendered by a planner.
[27] In reply to the contention s by the first, second, and third respondents, the
first applicant alleges that the first, second, and third respondents have
conveniently overlooked s 16(1), s 16(2), and s 16(4) of the PPA.
[28] The first applicant contends that no work being reserved in terms of PPA
for registered planners, and land surveyors being able to do the work that
is contemplated in the PPA, notwithstanding that the first respondent
adopted Chapter 11, s 11.1 .1 and ss 11.1.1(a) of CMLUS, 2023, the
effect of which is that work is reserved for registered planners.
[29] The argument of the first applicant is that the first respondent has decided
for itself, without SACPLAN having followed the process in terms of s
16(1) and (2) of the PPA, to reserve work for planners registered in terms
of the PPA. It is the case of the first applicant that Chapter 11, s 11.1 .1
and ss 11.1.1(a) of CMLUS, 2023, is inconsistent with the PPA, with s 45
of SPLUMA, regulation 14 of SPLUMA , the by -law, in partic ular s
86(1)(b) and (c) of the first respondent. It is the argument of the first
applicant that the reservation of work in Chapter 11, s 11.1 .1 and ss
11.1.1(a) of CMLUS, 2023, is not sanctioned by the Constitution and the
relevant legislative framework.
[30] The first, second , and third respondents contend that no constitutional
rights are being infringed by Chapter 11, s 11.1 .1 and ss 11.1.1(a) of
CMLUS, 2023. The second and third respondents specifically contend
that the provisions of CMLUS, 2023, regar ding the registration of and
submission of land development applications should be read in line with
SPLUMA. The second and third respondents refer to s 54(e) of
SPLUMA, which reads as follows:
“54 Regulations
(1) The Minister may, after public consultation, make regulations consistent with
this Act prescribing-
(a) ….
(b) ….
(c) ….
(d) .…
(e) procedures concerning the lodging of applications and the
consideration and decision of such applications, including the-
(i) submission by app licants and objectors of additional
information, explanations and environmental impact
assessments;
(ii) conduct of investigations in terms of sections 32 and 48; and
(iii) guidelines for the determination of what amounts to an undue
delay for conside ration and disposal of application by a
Municipal Planning Tribunal for the purposes of this Act;”
[31] Regulation 14(a) of SPLUMA regulations reads as follows:
“LAND DEVELOPMENT AND LAND USE APPLICATIONS
Submission of land development and land use applications
(1) A municipality must determine
(a) the manner and format in which a land development and land use
application must be submitted;” (own underlining)
[32] The first respondent contends that it is empowered by section 156 of the
Constitution and s 24 of SPLUMA to adopt and approve a Land Use
Scheme to administer matters listed in Part B of Schedule 4 and Part B of
Schedule 5 of the Constitution It is submitted that in terms of regulation
14(a) of SPLUMA, the provisions of Chapter 11, s 11.1.1 and ss 11.1.1(a)
of the CMLUS, 2023 are in line with the provisions of SPLUMA as well
as the PPA.
ANALYSIS
[33] In determining whether registration with SACPLAN, alternatively
registration in terms of the provisions of the PPA, is not a prerequisite for
launching, advancing, or dealing with a land development application or
consolidation of land, or any deviation from the land use or uses
permitted in terms of an applicable land use scheme of the first
respondent. An exercise in interpretation of the PPA must be undertaken.
[34] In C:SARS v United Manganese of Kalahari (Pty) Ltd 5(United
Manganese) Wallis JA writing for the court said the following:
“It is unnecessary to rehearse the established approach to the interpretat ion of statutes
set out in Endumeni and approved by the Constitutional Court in Big Five Duty Free.
It is an objective unitary process where consideration must be given to the language
used in the light of the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the material known
to those responsible for its production. The approach is as applicable to taxing statutes
as to any other statute. The inevitable point of departure is the language used in the
provision under consideration.”6 [footnotes omitted]
[35] On the reading of s 2(a) of the PPA, the section sets out in unambiguous
terms the duties of professional planners ; in other words, the planning
principles as set out in s 2 (a) of the PPA provide guidance or explanation
5 (264/2019) [2020] ZASCA 16 (25 March 2020).
6 United Manganese Para [8].
on what planning work entails . In my view, p lanning work is clearly
defined in s 2(a) of the PPA.
[36] In my view, it is axiomatic that any person who renders services on behalf
of another as described in s (2)(a) of the PPA must be registered as
provided for in the PPA; any other interpretation would lead to absurd
results. In my view, further, there is no merit in the argument by the first
applicant that “ unless, in terms of the PPA, work has been reserved by
SACPLAN for any of the categories referred to in s 13(1) of the PPA, a
person may practice in or perform such work. ” This interpretation is
dangerous and is likely to result in abuse, with persons who do not hold
the required qualifications rendering services that should be provided by
professional planners. This cannot be allowed.
[37] I am satisfied that there is merit in the argument by the firs t, second, and
third respondents that , on a proper interpretation of s 2(a) of the PPA to
which Chapter 11, s 11.1.1 and ss 11.1.1(a) of CMLUS, 2023 is aligned,
there is a clear reservation of planning work for registered planners. The
relief sought in prayer 2 of the notice of motion must fail.
[38] I now turn to prayer 3 sought in the notice of motion. I have already
found that Chapter 11, s 11.1 .1 and ss 11.1.1(a) of CMLUS, 2023 , is
aligned with the PPA. It is self -evident that Chapter 11, s 11.1.1 and ss
11.1.1(a) of the CMLUS, 2023 is consistent with the PPA.
[39] I understood the argument of the first, second, and third respondents to be
that Chapter 11, s 11.1 .1 and ss 11.1.1(a) of CMLUS, 2023, relates to
planning applications in terms o f the Land Use Scheme which are
submitted by a person who is not the owner of the property and that
person is submitting the application on behalf of the owner of the
property concerned. Although s 11.1.1 and ss 11.1.1(a) of CMLUS, 2023,
could have been mo re clearly worded, it is obvious in my view that it
could never have been the intention of the first respondent to deny
property owners the right to submit applications in terms of the Land Use
Scheme on their own. The results would be absurd and unbusinesslike.
[40] My opinion in this regard is fortified by the contents of s 45(1)(a) and (b)
of SPLUMA, by-law of the first respondent, in particular s 86(1)(b) and
(c), s 1.11 of CMLUS, 2023, which refers to “owner”, s 1.13 which also
refers to “owner” and other sections of CMLUS, 2023 which refer to
“owner” in reference to applications in terms of the Land Use Scheme.
[41] In my view, the reservation of work in Chapter 11, s 11.1 .1 and ss
11.1.1(a) of CMLUS, 2023 , is sanctioned by the Con stitution, by
SPLUMA, and by the PPA. s 156 of the Constitution reads as follows:
“156 Powers and functions of municipalities
(1) A municipality has executive authority in respect of, and has the right to
administer-
(a) the local government matters listed in Part B of Schedule 4 and Part B of
Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
(2) A municipality may make and administer by-laws for the effective
administration of the matters which it has the right to administer.
(3) Subject to section 151 (4), a by-law that conflicts with national or provincial
legislation is invalid. If there is a conflict between a by-law and national or
provincial legislation that is inoperative because of a conflict referred to in
section 149, the by-law must be regarded as valid for as long as that legislation
is inoperative.
(4) The national government and provincial governments must assign to a
municipality, by agreement and subject to any conditions, the administration
of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which
necessarily relates to local government, if-
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.
(5) A municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective performance of its
functions.”
[42] Part B of Schedule 4 of the Constitution reads as follows:
“The following local government matters to the extent set out in section 155 (6) (a)
and (7):
Air pollution
Building regulations
Child care facilities
Electricity and gas reticulation
Firefighting services
Local tourism
Municipal airports
Municipal planning
Municipal health services
Municipal public transport
Municipal public works only in respect of the needs of municipalities in the
discharge of their responsibilities to administer functions specifically assigned to
them under this Constitution or any other law
Pontoons, ferries, jetties, piers and harbours, excluding the regulation of
international and national shipping and matters related thereto
Stormwater management systems in built-up areas
Trading regulations
Water and sanitation services limited to potable water supply systems and domestic
waste-water and sewage disposal systems”
[43] Part B of Schedule 5 of the Constitution reads as follows:
“The following local government matters to the extent set out for provinces in section
155 (6) (a) and (7):
Beaches and amusement facilities
Billboards and the display of advertisements in public places
Cemeteries, funeral parlours and crematoria
Cleansing
Control of public nuisances
Control of undertakings that sell liquor to the public
Facilities for the accommodation, care and burial of animals
Fencing and fences
Licensing of dogs
Licensing and control of undertakings that sell food to the public
Local amenities
Local sport facilities
Markets
Municipal abattoirs
Municipal parks and recreation
Municipal roads
Noise pollution
Pounds
Public places
Refuse removal, refuse dumps and solid waste disposal
Street trading
Street lighting
Traffic and parking”
[45] Municipal planning is listed under Part B of Schedule 4 as one of the
areas that the first respondent enjoys executive authority to administer . It
is not in dispute between the parties that the first respondent may make
by-laws for municipal planning. The first applicant argued in his heads of
argument that the regulation of professions is not a matter mentioned in
either Schedule 4 or 5 of the Constitution. The first applicant's argument
goes further to state that s 156(3) of the Constitution provides tha t,
subject to s 151(4), a by -law that conflicts with national or provincial
legislation is invalid.
[46] The provisions of Chapter 11, s 11.1.1 and ss 11.1.1(a) of CMLUS, 2023
do not regulate the profession of planners. The PPA does that. It is s 2(a)
of the PPA which has set out the terms and the duties of professional
planners, and it is s 16(3)(a) (b) and (c) read with s 13(1) and (2) of the
PPA which has determined which pr ofessions are competent perform the
tasks set out in s 2(a) of the PPA . As stated above, Chapter 11, s 11.1 .1
and ss 11.1.1(a) of CMLUS, 2023, is in line with the provisions of
SPLUMA and the PPA. I am satisfied that Chapter 11, s 11.1.1 and ss
11.1.1(a) of CMLUS, 2023 is not in conflict with national or provincial
legislation. The relief sought in prayer 3 of the notice of motion must fail.
COSTS
[47] It is a trite principle in our jurisprudence that costs follow the cause . The
first applicant in his heads of argument has submitted that if he and the
second applicant are not successful, then the Biowatch principle7 should
be applied . The first, second , and third respondents have argued that
Biowatch is inapplicable to this matter.
[48] In Biowatch, the court said the following:
7 Biowatch Trust v Registrar, Genetic Resources (Biowatch) 2009 (6) SA 232 (CC).
“As stated above the general rule for an award of costs in constitutional
litigation between a private party and the state is that if the private party is
successful, it should have its costs paid by the stat e, and if unsuccessful, each
party should pay its own costs. In the present matter, Biowatch achieved
substantial success. Not only did it manage to rebut a number of preliminary
objections aimed at keeping the case out of court altogether, it also succeed ed
in getting a favourable response from the Court to eight of the eleven
categories of information it sought. In these circumstances the “misconduct”
of Biowatch would need to have been of a compelling order indeed to justify a
failure to award costs agai nst the state. The reasons advanced by the High
Court for making no award of costs do not, however, persuade. ”8 (own
underlining)
[49] I understand the arguments of the first, second, and third respondents on
the question of costs to be that the first and second applicants brought an
application for similar relief under case number M23/24, which they
subsequently withdrew. The first applicant counters thi s argument by
stating that in the application under case number M23/24, a constitutional
challenge to Chapter 11, s 11.1.1 and ss 11.1.1(a) of CMLUS, 2023 , was
not raised.
[50] The purpose of an award of costs is to indemnify a successful party who
has incurred expenses in instituting or defending an action. 9 As stated in
Biowatch, in constitutional litigation between a private party and the
State, if the private party is successful, it should recover its costs from the
State; if unsuccessful, each party should pay its own costs. This is subject
to the proviso that the private party has not committed misconduct which
would justify an order depriving it of its costs. In my view, misconduct by
8 Biowatch Para [43].
9 Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at 488.
the private party might deprive it of the protection afforded by the
Biowatch principle.
[51] In this application, the first and second applicants were fully aware of the
defence on which the first respondent relied . The first applicant went so
far as to attach the answering affidavit of the first respondent to the
application under M23/24 , which, in substance, was similar to the
answering affidavit filed in this application on behalf of the first
respondent. The relief sought in the application under case number
M23/24 was similar to the relief sought in prayer 2 o f the notice of
motion in the application before this Court.
[52] The first respondent contended in its answering affidavit that , in the
application under case number M23/24, the first and second applicants
failed to cite the second and third respondents , and that this was fatal to
the application. Apart from denying that the failure to cite the second and
third respondents in the application under case number M23/24 was fatal
to that application, nothing more is said by the first applicant on why the
application under case number M23/24 was withdrawn.
[53] I am of the view that the first and second applicants are abusing court
processes in bringing the application under case number M23/24,
withdrawing the application for no apparent reason, and bringing the
current application for the same relief but adding a constitutional
challenge to Chapter 11, s 11.1.1 and ss 11.1.1(a) of CMLUS, 2023. There
is, in my view, no reason why this Court should deviate from the trite
principle that costs follow the cause.
[54] This application was complex and important to the first, second, and third
respondents. A costs order on Scale “C” is warranted10.
[55] Resultantly, the following order is made:
ORDER
(i) The application is dismissed.
(ii) The first and second applicants are ordered to pay the costs of the
application jointly and severally, one paying the other to be
absolved on a party and party scale, including the costs of counsel
on scale “C”.
__________________________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
10 Mashavha v Enaex Africa (Pty) Ltd (2022/18404) [2024] ZAGPJHC 387; 2025 (1) SA 466 (GJ) (22 April
2024) Para [6].
APPEARANCES
For the first and second applicant: Adv L Hollander
Instructed by: Theron Jordaan & Smit Inc
C/o CJP Oelofse Attorneys
Mahikeng
Email: mhk3@cjp.co.za
Ihollander@maisels3.co.za
For the first respondent: Adv B L Manentsa
Instructed by: Mamatela Attorneys Inc
C/o ME Tlou Attorneys
Mahikeng
Email: asetlhare@mamatelainc.co.za
mamatela@mamatelainc.co.za
edwin@tlouattorneys.co.za
bmanentsa@group621.co.za
For the second and third
Respondent: Adv P Steyn
Instructed by: Mamatela Attorneys Inc
C/o ME Tlou Attorneys
Mahikeng
Email: asetlhare@mamatelainc.co.za
mamatela@mamatelainc.co.za
edwin@tlouattorneys.co.za
steyn@planlaw.co.za
Date Heard: 2 May 2025
Date Handed Down: 10 March 2026