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[2018] ZASCA 19
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Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others (1250/2016) [2018] ZASCA 19; 2018 (4) SA 107 (SCA) (16 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1250/2016
In
the matter between:
PATMAR
EXPLORATIONS (PTY) LTD
FIRST APPELLANT
PATMAR
ENERGY (PTY) LTD
SECOND
APPELLANT
PATMAR
MANUFACTURING (PTY) LTD
THIRD APPELLANT
HUILBOS
BELEGGINGS (PTY) LTD
FOURTH APPELLANT
AVANT
VERSPREIDERS (PTY) LTD
FIFTH APPELLANT
and
THE
LIMPOPO DEVELOPMENT
TRIBUNAL
FIRST
RESPONDENT
MEC
FOR CO-OPERATIVE GOVERNMENT, HUMAN
SETTLEMENT
AND TRADITIONAL AFFAIRS,
LIMPOPO
SECOND RESPONDENT
THE
PREMIER, LIMPOPO PROVINCE
THIRD
RESPONDENT
MINISTER
OF RURAL DEVELOPMENT AND
LAND
REFORM
FOURTH RESPONDENT
GABRIEL
STEPHANUS LABUSCHAGNE N.O.
FIFTH RESPONDENT
CATHARINA
LEFINA LABUSCHAGNE N.O.
SIXTH RESPONDENT
ABEL
HERMANUS GERHARDUS NELL N.O. SEVENTH
RESPONDENT
LOSKOP
MOTORS (PTY) LTD T/A TM
EIGHTH RESPONDENT
AUTO
(CALTEX)
J
H JARDIN T/A LOSKOP VALLEI
NINTH RESPONDENT
FILLING
STATION (BP)
JKG
PETROL SALES CC
TENTH RESPONDENT
E
T
PAPADOPOULOS
ELEVENTH RESPONDENT
A
PAPADOPOULOS
TWELFTH RESPONDENT
Neutral
citation:
Patmar
Explorations (Pty) Ltd v Limpopo Development Tribunal
(1250/2016)
[2018] ZACC 19
(16 March 2018)
Coram:
NAVSA, WALLIS and MATHOPO JJA and DAVIS and HUGHES
AJJA
Heard
:
23 February 2018
Delivered
:
16 March 2018
Summary:
Stare decisis
–
SCA
does not depart from its own previous judgments unless satisfied
clearly wrong – High Court – judges in same division
bound by judgments of that division unless satisfied clearly wrong –
costs
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (N F Kgomo J, sitting as court of first
instance) it is ordered that:
1
The appeal is upheld with costs, such costs
to be paid by the First to Third Respondents jointly and severally,
the one paying the
other to be absolved..
2
The order of the High Court is set aside
and replaced by the following:
‘
1
The decision of the First Respondent on 14 November 2012 approving
the application by the Gawie Labuschagne Trust
for development rights
in respect of erven 7[...]6 and 7[...]7 Groblersdal Extension 11 is
set aside as null and void.
‘
2
The First to Third Respondents are ordered to pay the costs of the
application, jointly and severally the one paying
the other to be
absolved.’
JUDGMENT
Wallis
JA (Navsa and Mathopo JJA and Davis and Hughes AJJA concurring)
[1]
Chapters
V and VI of the Development Facilitation Act (DFA) established
development tribunals in the various provinces of South
Africa and
empowered them to approve land developments. However, those
provisions were declared to be unconstitutional by this
Court
[1]
and the Constitutional Court confirmed that order.
[2]
It suspended its order of invalidity for two years to enable the
legislature to remedy the constitutional defect. The order of
suspension expired on 17 June 2012. On that date the first
respondent, the Limpopo Development Tribunal (the Tribunal), had
before
it a land development application for the construction of a
service station brought by the fifth to seventh respondents.
[3]
The appellants, among others, opposed the application. They submitted
to the Tribunal that, in consequence of the expiry of the
suspension
order, the relevant provisions were now unconstitutional and their
power to determine the application had ceased to
exist. The Tribunal
rejected this contention and proceeded to deal with and uphold the
application on 8 November 2012. This
prompted the appellants to
bring proceedings in the Gauteng Division, Pretoria of the High Court
for an order reviewing and setting
aside its decision. The
application was dismissed by N F Kgomo J and this appeal is with his
leave.
[2]
On
26 September 2016, three days before leave to appeal was granted,
this Court delivered its judgment in
Shelton
,
[4]
holding that the effect of the Constitutional Court’s period of
suspension of its order of invalidity expiring was to deprive
the
Eastern Cape Development Tribunal of the power to determine
applications lodged with it, but not disposed of, prior to the
17
th
June 2012. As a matter of law that judgment meant that the decision
by the Tribunal in the present case in relation to the application
by
the fifth to seventh respondents was invalid, because it was made at
a time when the Tribunal no longer had the power to make
such
decisions. The outcome of this appeal thus became inevitable, subject
only to the plea by the Tribunal that the decision in
Shelton
‘should be reconsidered in that the court
[5]
correctly found that the Constitutional Court judgment is silent on
the position of applications lodged during the period of suspension
but not finalised at midnight on 17 June 2012’.
[3]
It
is surprising in the light of this submission that we were not
referred to any of the cases dealing with the circumstances in
which
this Court will depart from its previous decisions on a matter of
law. The basic principle is
stare
decisis
,
that is, the Court stands by its previous decisions, subject to an
exception where the earlier decision is held to be clearly
wrong. A
decision will be held to have been clearly wrong where it has been
arrived at on some fundamental departure from principle,
or a
manifest oversight or misunderstanding, that is, there has been
something in the nature of a palpable mistake. This Court
will only
depart from its previous decision if it is clear that the earlier
court erred or that the reasoning upon which the decision
rested was
clearly erroneous. The cases in support of these propositions are
legion.
[6]
The need for palpable
error is illustrated by cases in which the court has overruled its
earlier decisions.
[7]
Mere
disagreement with the earlier decision on the basis of a differing
view of the law by a court differently constituted is not
a ground
for overruling it.
[4]
The
doctrine of
stare
decisis
is
one that is fundamental to the rule of law. The object of the
doctrine is to avoid uncertainty and confusion,
[8]
to protect vested rights and legitimate expectations as well as to
uphold the dignity of the court.
[9]
It serves to lend certainty to the law. In those circumstances the
bar that the Tribunal set itself to clear in this case was high.
It
made no attempt to clear it. In fact, in response to a question from
the Bench, counsel responded: “We are not necessarily
saying
Shelton
is
wrong.’ That renders it unnecessary to engage in any detailed
examination of the judgment in that case. It suffices to
say that I
see no reason to depart from the conclusion this court reached in
Shelton
.
[5]
The appeal must therefore
succeed. However, it is necessary to address two other issues, the
one relating to the approach of the
High Court to the issue of
stare
decisis
and the other to the question
of costs.
[6]
This
was not the only case after 17 June 2012 in which the Tribunal
approved land development applications that were pending prior
to
that date. Running virtually in parallel with it, in the same court,
was another involving the Mogalakwena Municipality.
[10]
In a judgment delivered on 6 May 2013, Mothle J held that the
Tribunal had been divested of its powers to grant development
applications with effect from 17 June 2012 in consequence of the
expiry of the period of suspension of the Constitutional Court’s
order of constitutional invalidity in relation to the relevant
provisions of the DFA. He interdicted the Tribunal from performing
any functions under the DFA in respect of the land development
application in that case. There was no appeal against his
decision.
[11]
[7]
Accordingly,
when the present case came to be argued in the High Court on 24
November 2014, there existed a judgment of the same
court on the very
point in issue. The principles of
stare
decisis
required
the judge to follow that decision unless satisfied that it was
clearly wrong.
[12]
The High
Court disregarded that principle. It said in regard to the submission
that the replacement legislation
[13]
and its transitional provisions would have been unnecessary if
invalidity had not taken effect from 17 June 2012 that: ‘The
jury is still out on this submission.’ The jury was not out
because a judgment had already been delivered on the point. Mothle
J’s judgment was rejected on the basis that ‘it is not
correct as it is inconsistent with the Constitutional Court’s
judgment’. This approach was entirely incorrect.
[8]
The judge was only entitled to depart from
the earlier judgment if satisfied that it was clearly incorrect. The
proper approach
was to ask whether Mothle J’s judgment was a
tenable interpretation of the Constitutional Court’s decision
and order.
There could be only one answer to that question, namely,
that it was, as the lengthy discussion of that very issue in the High
Court’s judgment amply demonstrated. And once that conclusion
was reached nothing more needed to be said. Kgomo J was
obliged
to follow his colleague’s decision and should have done so. The
test for departing from a judgment from one’s
own court is set
high so that it is only done in few cases and then only after anxious
consideration.
[9]
Turning to costs the appellants are
entitled to their costs and entitled to recover them from the
Tribunal and the MEC, who supported
the Tribunal in pursuing the
proceedings to this court. Whilst it is deplorable that as a result
of decisions by unnamed officials
these costs, as well as the costs
of resisting this appeal, have been incurred unnecessarily and are a
burden on the public purse,
it is beyond our remit to address and
solve this problem. The appellants were brought to this Court by the
first to third respondents
and it is legitimate for them to insist
that the respondents pay their costs and not the officials
responsible for this situation,
who may in any event not have the
means to pay them.
[10]
The following order is made:
1
The appeal is upheld with costs, such costs
to be paid by the First to Third Respondents jointly and severally,
the one paying the
other to be absolved.
2
The order of the High Court is set aside
and replaced by the following:
‘
1
The decision of the First Respondent on 8 November 2012 approving the
application by the Gawie Labuschagne Trust for
development rights in
respect of erven 7[...]6 and 7[...]7 Groblersdal Extension 11 is set
aside as null and void.
‘
2
The First to Third Respondents are ordered to pay the costs of the
application, jointly and severally the one paying
the other to be
absolved.’
M J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellant:
A
Liversage
Instructed
by:
Adriaan
Venter Attorney & Associates; Pretoria
Rossouws
Attorneys, Bloemfontein
For
1
st
to 3
rd
respondents:
M S
Phaswane
Instructed
by:
The
State Attorney, Pretoria
Ivan
Pauw & Partners, Bloemfontein.
[1]
Johannesburg
Municipality v Gauteng Development Tribunal and Others
[2009]
ZASCA 106; 2010 (2) SA 554 (SCA).
[2]
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
[2010]
ZACC 11
;
2010 (6) SA 182
(CC).
[3]
The
latter have played no part in this appeal and, in the High Court,
withdrew their opposition and tendered costs when the time
came to
deliver heads of argument.
[4]
Shelton
and another v Eastern Cape Development Tribunal and others
[2016]
ZASCA 125.
There was no attempt to appeal that decision to the
Constitutional Court.
[5]
That
is this Court in
Shelton
.
[6]
Bloemfontein
Town Council v Richter
1938
AD 195
at 232;
R
v Nxumalo
1939 AD 580
;
CIR
v Estate Crewe and Another
1943 AD 656
;
Brisley
v Drotsky
[2002] ZASCA 35
;
2002 (4) SA 1
(SCA) at 24H.
[7]
Coface
South Africa Insurance Co Limited v East London Own Haven t/a Own
Haven Housing Association
[2013] ZASCA 202
;
2014 (2) SA 382
(SCA) overruling
Dormell
Properties 282 CC v Renasa Insurance Co Limited
and
Others NNO
[2010]
ZASCA 137; 2011 (1) SA 70 (SCA).
[8]
CIR
v Estate Crewe
1943 AD 656
at 680; Kahn 1955
SALJ
652.
[9]
Ex
parte Minister of Safety & Security
:
In
re S v Walters
[2002]
ZACC 6
;
2002 (4) SA 613
(CC) 646;
2002 7 BCLR 663
(CC) paras 53-61;
Afrox
Healthcare Bpk v Strydom
[2002] ZASCA 73
;
2002 (6) SA 21
(SCA) 38F–40F
[2002] ZASCA 73
; ;
[2002] 4 All SA
125
(SCA);
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[2010]
ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC) para 28.
[10]
Mogalakwena
Local Municipality v Semmogo Property Development (Pty) Ltd and
others
(Case
No 18585/2013, unreported)
[11]
There
was also some indirect support for Mothle J’s views
in
Nabuvax
(Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and
Others
[2013]
ZAGPPHC 18;
[2013] 3 All SA 528
(GNP) para 48-50.
[12]
Klaassen
v Benjamin
1941
TPD 80
at 90;
Shabalala
v Attorney-General, Transvaal; Gumede v Attorney-General, Transvaal
1995
(1) SA 608
(T) at 618D-H. Whatever revisions may be required to the
rules governing
stare
decisis
in
the light of recent structural changes to the courts effected by the
Superior Courts Act 10 of 2013
, there is no reason to believe that
they should affect this principle. If anything the principle must
operate more extensively.
[13]
Spatial
Planning and Land Use Management Act 16 of 2013
.