CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 332/18
In the matter between:
ALBERT DYKEMA Applicant
and
ARTHUR PULE MALEBANE First Respondent
BELA-BELA LOCAL MUNICIPALITY Second Respondent
and
SOUTH AFRICAN ASSOCIATION OF CONSULTING
PROFESSIONAL PLANNERS Amicus Curiae
Neutral citation: Dykema v Malebane and Another [2019] ZACC 33
Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
Judgments: Froneman J (unanimous)
Heard on: 28 May 2019
Decided on: 10 September 2019
Summary: Chapters V and VI of the Development Facilitation Act 67 of 1995
— suspension of declaration of invalidity — expiration of
suspension without remedial legislation being passed — legal
consequences
2
Status of applications submitted but not finalised before the
expiration of suspension — valid and “ pending” in terms of the
Spatial Planning and Land Use Management Act 16 of 2013 —fall
to be disposed of in the manner prescribed by section 60
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the Supreme Court of Appeal is set
aside.
3. Mr Dykema’s application submitted in terms of the
Development Facilitation Act 67 of 1995 is declared to be “pending”
under section 60(2)(a) of the Spatial Planning and Land Use Management
Act 16 of 2013 and must accordingly be disposed of in the manner
prescribed by section 60 of the Spatial Planning and Land Use
Management Act 16 of 2013.
4. Each party is to pay its own costs, both in this Court and in respect of the
litigation in the High Court and the Supreme Court of Appeal.
JUDGMENT
FRONEMAN J (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Ledwaba AJ,
Madlanga J, Mhlantla J, Nicholls AJ and Theron J concurring):
FRONEMAN J
3
The best laid plans of mice and men often go awry.1 So, sometimes, do those of
courts. The unintended consequences of this Court’s judgment in Gauteng
Development Tribunal need to be unravelled here.2
The case concerns the applicability of, and interaction betwe en, successive
legislative regimes governing municipal planning: the now repealed Development
Facilitation Act (DFA) 3 and the Spatial Planning and Lan d Use Management Act
(SPLUMA).4 In particular, the dispute turns on the legal status of decisions and
applications during the transition period between these two legislative frameworks
when there was a three-year gap in the regulation of municipal planning.
This gap was the direct result of Parliament’s failure to enact remedial legislation
to govern municip al planning before the expiry of this Court’s suspension of a
declaration of invalidity in Gauteng Development Tribunal. Indirectly, the risk of this
legislative lacuna arose because this Court did not anticipate this potential failure by
Parliament. It thus granted an order that did not explicitly regulate the legal
consequences of that eventuality. Central to the current dispute is the proper
interpretation of this Court’s order in that case in light of the reasoning that was
provided to justify the order.
This case has unfolded against a changing legislative landscape. It is necessary
to have regard to that backdrop in order to understand the legal uncertainty that
prevailed at various points in the current litigation.
1 The saying is adapted from a line in “To a Mouse” by Robert Burns: “The best laid schemes o’ mice an’ men /
Gang aft a-gley.”
2 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal [2010] ZACC 11; 2010 (6) SA 182
(CC); 2010 (9) BCLR 859 (CC) (Gauteng Development Tribunal).
3 67 of 1995.
4 16 of 2013.
FRONEMAN J
4
Legislative history
Each of t he four provinces existing before 1994 had an ordinance that
empowered authorised local authorities to consider applications to rezone land and
establish new townships within their local jurisdiction. 5 This Court noted in
Gauteng Development Tribunal that this legislative framework was problematic for its
jurisdictional fragmentation, applying only to territories that formed part of the
pre-1994 provinces and not to the former “independent” homelands or self -governing
territories.6
The DFA was enacted as a temporary measure pending the enactment of
comprehensive land use legislation. 7 The aim of the DFA was to speed up land
development across the country.8 Chapters V and VI of the DFA provided an important
vehicle for achieving this aim by au thorising Provincial Development Tribunals
(Tribunals) to determine applications for the rezoning of land and the establishment of
townships within their respective provincial jurisdictions.9
In 2010, a constitutional challenge to Chapters V and VI of the DFA came before
this Court. The challenge was prompted by a dispute between the City of Johannesburg
(City) and the Gauteng Development Tribunal regarding their respective powers to
decide applications for land developments in the municipal areas where t heir
jurisdiction overlapped. The City complained that approvals by the Gauteng
Development Tribunal failed to take into account the City’s development planning
instruments and was too lenient in granting applications.
5 The Transvaal Province’s Town-Planning and Townships Ordinance 15 of 1986; the Cape Province’s Land Use
Planning Ordinance 15 of 1985; the Orange Free State’s Townships Ordinance 9 of 1969; and the Natal Province’s
Town Planning Ordinance 27 of 1949.
6 Gauteng Development Tribunal above n 2 at para 32.
7 Id at para 33.
8 Id at para 35.
9 Id at para 38.
FRONEMAN J
5
Although the City was unsuccessful in the High Court, the
Supreme Court of Appeal held that Chapters V and VI of the DFA were
unconstitutional. This was because the authorisation of provincial organs to approve
applications for rezoning and township developments was in conflict with the executive
functional area of “municipal planning” allocated to Municipalities in terms of Part B
of Schedule 4 to the Constitution.10
On 18 June 2010, this Court confirmed the Supreme Court of Appeal’s order of
constitutional invalidity, finding that the imp ugned chapters of the DFA were
inconsistent with section 156 read with Part B of Schedule 4 to the Constitution.
However, the remedy granted by this Court differed from the
Supreme Court of Appeal’s order in two important respects.
First, we extended the suspension of the declaration of invalidity
(the suspension) from 18 to 24 months. This extension was based on the evidence put
forward by the parties, which underscored the potential disruption to progress with land
development that would r esult from a legislative rupture. We considered this longer
suspension to be a “reasonable time for Parliament to rectify the defects or enact new
legislation”.11
Second, the conditions attached to this suspension were changed. Unlike the
Supreme Cou rt o f Appeal, our order did not prohibit provincial Tribunals from
accepting new applications during the suspension period , but rather set explicit
constraints on how to decide pending applications so as to protect municipalities’
interests.12
10 City of Johannesburg v Gauteng Development Tribunal [2009] ZASCA 106; 2010 (2) SA 554 (SCA) at para
43.
11 Gauteng Development Tribunal above n 2 at para 80.
12 Id at para 95, this Court made the following order:
“1. The Member of the Executive Council of KwaZulu -Natal for Local Government and
Traditional Affairs; eThekwini Municipality; and the Department of Agriculture, Rural
Development and Land Administration, Mpumalanga, are joined as the first, second
and third intervening parties.
FRONEMAN J
6
On 22 March 2012 , the Department of Rural Development and Land Reform
(Department) announced in a policy statement that the Spatial Planning and Land Use
Management Bill (SPLUMB) would soon be introduced into Parliament. However, it
acknowledged that there was “genuine apprehension” that SPLUMB would not be
passed before the 17 June 2012 deadline, when this Court’s suspension of the
declaration of invalidity in Gauteng Development Tribunal would expire. This policy
statement promised that an applicat ion for an extension of the suspension would be
made to this Court “if it is established that no other viable alternative exists to
processing land applications in any part of the country except via the DFA”. It assured
“all interested persons and professionals involved in the land development and land use
2. Condonation for the late filing of written submissions is granted.
3. The application of the City of Johannesburg Metropolitan Municipality for leave to
appeal in respect of the review application is dismissed.
4. The appeal by the Gauteng Development Tribunal, Gauteng Development Appeal
Tribunal, the Minister of Land Affairs, and the Member of the Executive Council for
Development, Planning and Local Government, Gauteng is also dismissed.
5. The order of constitutional invalidity made by the Supreme Court of Appeal in respect
of Chapters V and VI of the Development Facilitation Act 67 of 1995 is confirmed.
6. Paragraph 2 of that order relating to the suspension of the order of in validity is set
aside.
7. The declaration of invalidity is suspended for 24 months from the date of this order to
enable Parliament to correct the defects or enact new legislation.
8. The suspension is subject to the following conditions:
(a) Development tribunals must consider the applicable integrated development
plans, including spatial development frameworks and urban development
boundaries, when determining applications for the grant or alteration of land
use rights.
(b) No development tribunal establ ished under the Act may exclude any by -law
or Act of Parliament from applying to land forming the subject -matter of an
application submitted to it.
(c) No development tribunal established under the Act may accept and determine
any application for the grant or alteration of land use rights within the
jurisdiction of the City of Johannesburg Metropolitan Municipality or
eThekwini Municipality, after the date of this order.
(d) The relevant development tribunals may determine applications in respect of
land falling within the jurisdiction of the City of Johannesburg Metropolitan
Municipality or eThekwini Municipality only if these applications were
submitted to it before the date of this order.
9. There is no order as to costs.”
FRONEMAN J
7
management fields that the Department will not allow a situation where a vacuum is
allowed to exist in this regulatory environment”.
Notwithstanding these assurances, the policy statement sought to provide clarity
on the legal status of applications pending before Tribunals at 17 June 2012 , if
SPLUMB was not passed in time. The Department’s official position set out that all
“applications received by Development Tribunals before 17 June 2012 will continue to
be heard and determined by the Tribunals even after 17 June 2012 as if the
Constitutional Court had not declared invalid Chapters V and VI of the DFA” , but
subject to substantially the same conditions contained in the Court’s order.
A few days later, the Department issued a postscript to the policy statement. It
acknowledged that there was doubt as to the possible continued use of Chapters V and
VI of the DFA after 17 June 2012 to consider and finalise applications lodged before
that date. It also acknowledged that the policy statement’s interpretation of the
judgment in Gauteng Development Tribunal was “not consistent with the Order as
granted by the Constitutional Court”. It nevertheless reaffirmed the legal position se t
out in the Policy Stateme nt, relying on section 12(2)(c) of the Interpretation Act 13 in
support of its interpretation.
On 17 June 2012, the suspension of the declaration of invalidity expired without
any remedial legislation in place. This was in spite of persistent intervention by the
South African Association of Consulting Professional Planners (SAACPP) warning of
the disruptive consequences of the impending gap, and the Department’s assurance that
either SPLUMB would be enacted or an extension sought. After the expiry of the
suspension period, Tribunals throughout South Africa continued to process applications
lodged prior to the expiry date.
13 33 of 1957. Section 12(2)(c) of the Interpretation Act provides that “[w]here a law repeals any other law, then
unless the contrary intention appears, the repeal shall not . . . affect any right, privilege, obligation or liability
acquired, accrued or incurred under any law so repealed”.
FRONEMAN J
8
After the expiration of the suspension period, with SPLUMB still in the pipeline,
the Parliamentary Portfolio Committee began to show more appreciation of the need for
transitional arrangements to deal with the gap. Section 60(2) of SPLUMB was therefore
amended with the purpose of addressing the legal uncertainty created.
SPLUMA only came into effect some three years later, on 1 July 2015.
In 2016, after SPLUMA came into effect, the Supreme Court of Appeal held in
Shelton that the Department’s policy statement was incorrect and inconsistent with this
Court’s declaration of invalidity in Gauteng Development Tribunal , which came into
effect after the suspension expired. 14 The Supreme Court of Appeal accordingly held
that any approval by a Tribunal after 17 June 2012 was invalid. Shelton was reaffirmed
by the Supreme Court of Appeal in Patmar.15
Facts
On 10 February 2012, four months before the expiration of the period of
suspension of constitutional invalidity of Chapters V and VI of the DFA, the applicant
(Mr Dykema ) lodged an application with the Limpopo Development Tribunal
(Limpopo Tribunal) for planning permission to set up a one -stop service station on his
property. The application was brought in terms of Chapter V of the DFA, and involved
a change in land use from “agricultural” and “general” to “special” under Land Use
Zone 85 in terms of the Bela-Bela Land-Use Scheme.16
On receipt of the application, the Limpopo Tribunal forwarded it to the second
respondent, the Bela-Bela Local Municipality (Municipality), for comment. A process
of approximately three months of internal communications between the Limpopo
Tribunal and the Municipality ensued, culminating in the Municipal Manager
14 Shelton v Eastern Cape Development Tribunal [2016] ZASCA 125; 2016 JDR 1787 (SCA) at paras 18-20.
15 Patmar Explorations (Pty) Ltd v Limpopo Development Tribunal [2018] ZASCA 19; 2018 (4) SA 107 (SCA)
(Patmar) at para 4.
16 Bela-Bela Local Municipality Land-Use Scheme 2016.
FRONEMAN J
9
expressing approval of the application on 7 May 2012, subject to the project complying
with specified conditions.
Between 13 April and 5 June 2012, the Limpopo Tribunal conducted various
hearings on the land development application where evidence was led and expert reports
considered. The conclusion after these hearings was to receive submissions from the
legal representatives of Mr Dykema and other interested parties, before a decision
would finally be reached by the Limpopo Tribunal. These heads of argument had to be
filed by 16 July 2012.
After argument was presented, the Limpopo Tribunal reserved its decision. On
1 November 2012, the Limpopo Tribunal approved Mr Dykema’s application subject
to certain conditions. However, the Municipality was unwilling to give effect to that
decision when requested to do so by Mr Dykema, instead replying more than a year
later informing Mr Dykema to lodge a fresh application for rezoning under alternative
planning legislation to the DFA.
During this time, the first respondent (Mr Malebane) decided to develop a similar
service station on his property, situated roughly 19 kilometres from Mr Dykema’s
property. During May 2014, he applied to the Municipality for the necessary planning
approvals under Transvaal’s Town -Planning and Townships Ordinance. 17 During
January 2015, Mr Malebane’s attorneys wrote to Mr Dykema’s attorney to establish the
status of his application, but received no reply.
In November 2015, Mr Dykema approached the High Court on an urgent basis
seeking an interim interdict against the Municipality from considering Mr Malebane’s
land use change application from farming to that of a filling station. Appropriate
undertakings were furnished, disposing of the urgent application, but the High Court
still had to determine the merits of the main application.
17 See above n 5.
FRONEMAN J
10
Litigation History
High Court
In the High Court, Mr Dykema sought a mandamus against the Municipality to
compel it to perform the outstanding statutory functions required to finalise the vesting
of his approved land use rights. In light of Shelton, Mr Dykema argued that even if the
Limpopo Tribunal’s November 2012 decision was invalid, his application nevertheless
remained pending and fell to be finalise d in terms of section 60 of SPLUMA. Mr
Dykema relied on Tronox18 to argue that the court retains a discretion to direct the
Limpopo Tribunal to exercise the powers of the Municipality in finalising the
application under SPLUMA , as long as it does so from t he vantage point of the
Municipality rather than the Province.
In the High Court, Cassim AJ dismissed the application for a mandamus because
it presupposed that the planning application had been validly approved.19 On the basis
of Shelton, he held that the November 2012 decision was a nullity .20 Oudekraal21 and
Kirland22 did not sustain Mr Dykema’s argument that it should be treated as valid until
set aside.23 However, he did accede to Mr Dykema’s request for declaratory relief to
the effect tha t his application was pending and must be dealt with in terms of section
60(2)(a) of SPLUMA.24 He held that this accorded a sensible and businesslike approach
to the meaning of section 60(2)(a) and should prompt the Municipality to deal
expeditiously and fairly with the application.25
18 Tronox KZN Sands (Pty) Ltd v KwaZulu -Natal Planning and Development Appeal Tribunal [2016] ZACC 2;
2016 (3) SA 160 (CC); (2016) 4 BCLR 469 (CC) (Tronox).
19 Dykema v Bela Bela Local Municipality 2017 JDR 1024 (GP) (High Court judgment) at para 28.
20 Id at paras 16, 27 and 30.
21 Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] ZASCA 48; 2004 (6) SA 222 (SCA) (Oudekraal).
22 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (3) SA 481 (CC); 2014
(5) BCLR 547 (CC) (Kirland).
23 High Court judgment above n 19 at para 30.
24 Id at para 32.
25 Id.
FRONEMAN J
11
Supreme Court of Appeal
Mr Malebane appealed against the High Court’s declaratory order, and
Mr Dykema cross-appealed against the adverse costs order. In a majority judgment
penned by Wallis JA, the Supreme Court of Appeal up held the appeal and dismissed
the cross -appeal.26 First, the majority interpreted this Court’s judgment in
Gauteng Development Tribunal as affording powers to Tribunals only during the period
of suspension and not after that.27 Once the period of suspension expired, the order of
constitutional invalidity came into effect. Accordingly, from 17 June 2012 the Limpopo
Tribunal lacked any power to make an order on Mr Dykema ’s application and any
decision to this effect was thus invalid.
Having established that the approval in November 2012 was not valid , the
majority considered whether there was nevertheless a valid application that remained
pending after the expiry of the suspension period. In this regard it held that a matter is
pending only for so long as the court or tribunal, before which it was brought, is capable
of making an order in relation to it. 28 The majority rejected the argument that this
approach would render section 60(2)(a) of SPLUMA superfluous, 29 because entirely
apart from applications under Chapters V and VI of the DFA, there was undoubtedly
scope for other kinds of applications, appeals or other matters to have been pending
before a Tribunal during the transition period.30
In a dissent, Mothle AJA held that either the application was still pending when
SPLUMA came into operation in 2015 or the enactment of SPLUMA must be accepted
as having “resuscitated” the applications pending under section 15 of the DFA and
26 Malebane v Dykema [2018] ZASCA 174; 2018 JDR 2116 (SCA) (Supreme Court of Appeal judgment) at para
30.
27 Id at para 11.
28 Id at paras 15-7.
29 Id at para 18.
30 Id at para 25.
FRONEMAN J
12
given them a lifeline. 31 While affirming that Shelton and Patmar were correct that
decisions after 17 June 2012 were invalid,32 Mothle AJA held that applications lodged
but not finalised in terms of the DFA neither lapsed nor became nullified on expiry of
the suspension period.33
A noteworthy aspect of this was Mothle AJA’s explicit characterisation of
Mr Dykema’s application as—
“an exercise of his right to just administrative action, as provided for in section 33 of
the Constitution. He had a legitimate and justified expectation that his application
would be considered and decided upon.”34
The pending application was therefore held to be the object of Mr Dykema’s right to
just administrative action, in contrast to the majority’s dismissal of this approach on the
basis that Mr Dykema had never complained th at this right had been infringed. 35 In
conclusion, the minority found that the interests of justice support the relief granted in
the High Court, as its order ensured lawful, reasonable and procedurally fair
administrative action between the parties.36
In this Court
Applicant’s submissions
Mr Dykema argued that the Supreme Court of Appeal was incorrect to conclude
that applications submitted, but not finalised, during the period of suspension of this
Court’s declaration of invalidity in Gauteng Development Tribunal, were invalidated
31 Id at para 57.
32 Id at para 60.
33 Id at para 31.
34 Id at para 43.
35 Compare id at para 43 with para 28.
36 Id at para 61.
FRONEMAN J
13
upon expiration of the suspension period. Relying on My Vote Counts,37 he contended
that the rationale for a suspension is not simply to allow time for the defect to be
corrected, but also to prevent a detrimental effect on right s or interests that would
otherwise flow from a declaration of invalidity.38
Bringing this rationale for suspended declarations of invalidity to bear on this
Court’s order in Gauteng Development Tribunal , Mr Dykema argued that the
suspension sought to ensure applications could continue to be processed during the
suspension period. In contrast to the Supreme Court of Appeal, this Court allowed
Tribunals to continue to accept applications during the suspension. This distinction, so
his argument goes , must mean that this Court envisaged such pending applications to
remain valid after the suspension period expired. The alternative, namely that
applications validly submitted during the suspension suddenly cease to be valid af ter
the expiration date, is an unbusinesslike and absurd interpretation of the order in
Gauteng Development Tribunal, which the Supreme Court of Appeal warned against in
Endumeni.39
However, regarding the validity of decisions made by the Tribunal after th e
expiration of the suspension period in respect of applications lodged during the
suspension period, Mr Dykema persisted with his argument that those approvals should
be regarded as valid.
First respondent’s submissions
Mr Malebane , argued that Mr Dykema ’s argument on the question whether
Tribunal decisions are valid if made after the expiration of the suspension period, fall s
37 My Vote Counts NPC v Minister of Justice and Correctional Services [2018] ZACC 17; 2018 (5) SA 380 (CC);
2018 (8) BCLR 893 (CC) (My Vote Counts).
38 See further Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v
Habitat Council [2014] ZACC 9; 2014 (4) SA 437 (CC); 2014 (5) BCLR 591 (CC) ( Habitat Council) and First
National Bank of South Africa Ltd v Land and Agricultural Bank of South Africa; Sheard v Land and Agricultural
Bank of South Africa [2000] ZACC 9; 2000 (3) SA 626 (CC); 2000 (8) BCLR 876 (CC) (FNB).
39 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
(Endumeni) at para 18.
FRONEMAN J
14
outside the scope of this appeal. This is because Mr Dykema did not appeal against the
High Court’s dismissal of this relief.
Regarding the proper interpret ation of this Court’s order in
Gauteng Development Tribunal, Mr Malebane drew attention to the distinction between
this Court’s power to limit the effect of an order of invalidity (through suspension) and
its power to limit the retrospectivity of the order. In that case, this Court limited the
retrospectivity of the declaration of invalidity but, in terms of its prospective
application, the order was only suspended for 24 months. The default after the
expiration of this suspension period is thus invalidity. Without any express or implied
order by this Court that pending (undecided) applications would not lapse or become
nullified, the default is that subsequent decisions are invalid.
Regarding the question w hether the applications remained valid and pending
after the expiration date, Mr Malebane supported the reasoning of the majority of the
Supreme Court of Appeal.
Finally, Mr Malebane criticised Mothle AJA’s finding that the approval given
by the Municipal Manager on 7 May 2012 gave rise to a substantive administrative law
right. He contended that no right to just administrative action was in existence because
Chapters V and VI of the DFA were invalid and there was no pending application.
Amicus curiae’s submissions
The SAACPP, a voluntary association of professional town and regional
planners in terms of the Planning Professions Act ,40 was admitted as amicus curiae
(a friend of the court ). It argued that the correct approach to resolving the current
dispute is to first undertake an independent investigation into the proper interpretation
of section 60(2) of SPLUMA, and only then, on the basis of this interpretation,
determine the effect of DFA approvals after the expiration of the suspension.
40 36 of 2002.
FRONEMAN J
15
Before the expiry date, the focus of the Legislature was directed at securing the
enactment of SPLUMA before 17 June 2012. The expiry date was anticipated as also
being the date for the enactment of SPLUMA. Earlier versions of SPLUMB during this
period were concerned with the effect that the repeal of the DFA by SPLUMA would
have on pending applications. These drafts of SPLUMB were aimed at keeping
Tribunals alive to continue to consider and decide pending applications until a new cut-
off date was determined by the Minister for the finalisation of such pending
applications.
The SAACPP accordingly rejected the approach taken by the majority of the
Supreme Court of Appeal in adopting the dictionary meanin g of “pending”, which
ignores the factual matrix that gave rise to section 60(2)(a) and leads to an
unbusinesslike result.
Issues
The issues to be addressed are—
(a) whether leave to appeal should be granted;
(b) the effect of this Court’s decision in Gauteng Development Tribunal on
whether—
(i) decisions of Tribunals made after the expiration of the suspension
of the order of constitutional invalidity are valid; and
(ii) applications which were submitted, but not finalised, during the
period of suspension are pending applications capable of
determination; and
(c) whether these applications, if held to be valid and pending, fall to be
decided under section 60(2)(a) of SPLUMA.
FRONEMAN J
16
Jurisdiction and leave to appeal
This matter concerns the correct interpretation of this Court’s order in
Gauteng Development Tribunal and of section 60 (2)(a) of SPLUMA in the context of
Mr Dykema’s right to just administrative action. It thus involves constitutional matters
and raises an arguable point of law of general public importance which ought to be
considered by this Court.41
Clarifying the legal consequences of this Court’s suspension of the declaration
of invalidity made in Gauteng Development Tribunal involves legality issues and the
constitutional right to just administrative action. This is because Parliament’s failure to
pass SPLUMA before the expiration of the suspension impacts the fate of applications
submitted, but not finalised, before the expiration date.
The matter also raises legal questions of administrative law and statutory
interpretation which have general public importance. The question whether
Mr Dykema’s application is “pending” under section 60(2)(a) of SPLUMA engages a
broader question about the dependence of an application for its validity on the continued
availability of a competent decision -maker. The further question of whether his
application, if pending, falls to be determined in terms of section 60(2)(a) of SPLUMA
calls not only for interpretive clarity on this provision, but invites consideration as to
what sources of legislative drafting history may appropriately be considered by this
Court in statutory interpretation.
41 Section 167 of the Constitution sets out these two bases for engaging this Court’s jurisdiction in the following
terms:
“(3) The Constitutional Court—
…
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point of law of
general public importance which ought to b e considered by that
Court.”
FRONEMAN J
17
All these aspects are of relevance beyond this par ticular dispute. As we shall
see, there are also reasonable prospects of success.
Jurisdiction is thus established and it is also in the interests of justice to grant
leave to appeal.
Gauteng Development Tribunal
The order made in Gauteng Development Tr ibunal must be read in light of the
reasoning in the judgment. 42 This logically precedes an analysis of the legal
consequences of the expiration of the suspension period.
This Court’s decision not only to grant the suspension, but to extend the period
of extension from 18 months to 24 months was a response to the evidence put forward
by the amici and provincial departments warning that if th is Court did not allow
sufficient opportunity for the Legislature to pass remedial legislation, the order would
“create a vacuum and bring development to a complete halt in some municipalities”. 43
This vacuum would arise because the Ordinances we re confined in their application to
areas which formed part of the old Transvaal, Free State, Cape and Natal Provinces and,
even in areas where the Ordinances did apply, most municipalities lacked the capacity
to exercise their powers .44 Reflecting on the legislative regime constituted by these
Ordinances, this Court observed that “[t]here can be no doubt that this situation is
undesirable”.45
42 Gauteng Development Tribunal above n 2 at paras 71 -85. On interpretation generally, see Endumeni above n
39 at paras 18-20. These general principles of interpretation apply to the construction of court orders. See, to that
effect, Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC) at para 29 and Firestone
South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 304D-H.
43 Gauteng Development Tribunal above n 2 at para 75.
44 Id at para 79.
45 Id at para 78.
FRONEMAN J
18
The rationale for suspension was to avoid “serious disruptions or dislocations in
state administration that would ensue if the order of invalidity takes immediate effect”46
and to prevent prejudice to prospective land developers in the affec ted areas.47 These
two main justifications for the suspensions – avoiding administrative disruption and
preserving rights – are in keeping with this Court’s jurisprudence in relation to
suspension orders.48
In crafting just and equitable relief, the Court also had to balance the interests of
Municipalities (particularly the City and eThekwini given the facts of the case) as
against the interests of land developers.49 The regulation of Tribunals’ decision-making
powers during the suspension was structured as follows:
(a) The relevant Tribunals were barred from considering new development
applications in the jurisdiction of the City and eThekwini Municipality,
such that their decision -making power in these specific municipal
jurisdictions was limited to finalising pending applications;50
(b) Tribunals could continue to accept, process and finalise development
applications in respect of all other municipal jurisdictions, but these
decision-making powers were made conditional upon—
(i) upholding the municipalities ’ integrated development
plans; and
(ii) a prohibition against the exercise of their authority to
exclude certain laws and by-laws in terms of sections 33(2)
and 51(2) of the DFA.51
46 Id at para 73.
47 Id at para 80.
48 My Vote Counts above n 37; Habitat Council above n 38; and FNB above n 38.
49 Gauteng Development Tribunal above n 2 at para 81.
50 Id at para 8(c)-(d) of the order read with para 82.
51 Id at para 8(a)-(b) of the order read with paras 83-4.
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The only explicit statement about the legal consequences of the expiry regards
the non-retrospectivity of the declaration of invalidity:
“Finally, a necessary feature of this suspended declaration of invalidity is that it should
not have retrospective effect if the period of suspension expires without the defects in
the Act having been corrected. In exercising their powers under the impugned chapters,
development tribunals have approved countless land developments across the country.
It would not be just and equitable for these decisions to be invalidated if the declaration
of invalidity comes into force.”52
Neither the order nor the judgment provided a backstop moderating the legal
consequences should the suspension expire without remedial legislation being in place.
This is, most obviously, because the Court anticipate d diligent and expeditious
compliance with court orders as required by section 165(4) and (5) of the Constitution.
Indeed, the failure by the Legislature to pass remedial legislation in time is an
inexcusable breach of its constitutional duty to comply wit h this Court’s order. This
failure is only aggravated by the Department’s misleading policy statement issued in
March 2012 directing Tribunals to continue finalising development applications after
the expiration date, in conflict with the Gauteng Development Tribunal order. In spite
of explicitly recognising this potential conflict, no attempt was made to approach this
Court for clarification of the legal consequences of its order.
The problem that nevertheless remains is that when the period of suspensi on
ended, the second justification for the suspension – preserving rights – remained, but
was not catered for specifically in the suspended order. That is the conundrum we now
find ourselves in – our own best laid plan that has gone awry.
The Limpopo Tribunal decision
Upon the expiry of the suspension period, Chapters V and VI of the DFA were
invalidated, although the rest of the DFA remained valid. Tribunals, however,
52 Id at para 85.
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continued to exist after the expiration date, being established in terms of Chapter II I of
the DFA. They were legally abolished only in 2015, when SPLUMA repealed the DFA
in its entirety.
In the High Court, urgent relief was sought and obtained in the form of an
interdict restraining the Municipality from processing Mr Malebane’s application, and
a mandamus was sought directing the Municipality to give effect to the Tribunal’s
decision. The Municipality neither opposed the relief sought by Mr Dykema in the
High Court nor brought an application to set aside the Tribunal’s decision.
The validity of the Tribunal’s decision was challenged by Mr Malebane only
reactively because his competing application was the target of the interdict Mr Dykema
initially sought. He was not an objector or party to proceedings before the Tribunal (as
in Shelton and Patmar) but rather, “in loose parlance, a competitor seeking to convert
his property from agricultural use to that of a more commercially viable value”.53
The legality of the Tribunal’s decision was thus squarely before the High Court,
not in the form of a review, but as a collateral challenge. But because Mr Dykema has
not sought to cross-appeal against this part of the High Court order , the validity of that
decision is not before us. The High Court described it as a “nullity” and the only caution
that needs to be made is that this description may be misleading. A decision cannot be
disregarded and treated by an organ of state as a nullity until it is set aside by a court.54
53 High Court judgment above n 19 at para 9.
54 In Merafong City Local Municipality v AngloGold Ashanti Limited [2016] ZACC 35; 2017 (2) SA 211 (CC);
2017 (2) BCLR 182 (CC) (Merafong) at para 32, this Court confirmed that “the remedies of review and collateral
challenge differ distinctively in object, application and scope”.
As first explained by the Supreme Court of Appeal in Oudekraal above n 21 at para 36, and subsequently affirmed
by this Court in Merafong at para 32 and even more recently in Aquila Steel (Pty) Limited v Minister of Mineral
Resources [2019] ZACC 5; 2019 (3) SA 621 (CC); 2019 (4) BCLR 429 (CC) at para 97, when a court is asked to
set aside an invalid administrative act in proceedings for review, it has a d iscretion whether to grant or withhold
the remedy. It is in this context of a court exercising its discretion in deciding whether or not to set aside an
invalid act that the Oudekraal paradox arises – that an unlawful act exists in fact and may produce legally effective
consequences. For rule of law reasons, the Oudekraal / Kirland doctrine requires that unlawful acts cannot be
ignored as a nullity, but must be treated as valid until set aside in review proceedings. The court’s remedial
discretion to set aside unlawful administrative acts in review proceedings is necessary to ensure relief provides “a
FRONEMAN J
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Status of Mr Dykema’s application
In clarifying the status of Mr Dykema’s application, it is important to proceed
from the premise explicitly affirmed in Gauteng Development Tribunal that “[t]he effect
of the suspension is that the invalid law continues to operate with full force and
effect”.55 Mr Dykema’s application was valid ly submitted and the Limpopo Tribunal
was competent to accept the application and process it.
Clearly, an application lodged with a Tribunal after the suspension expired
would be invalid. But to hold that applications submitted, but not finalised, before the
expiration date are invalid would fly in the face of the rationale for the suspension
granted in Gauteng Development Tribunal. The purpose of the suspension was to avoid
a disruption to land development by expressly allowing Tribunals to continue to accept
and process applications. Ordinarily, the right to a decision arises from a validly
submitted application. 56 To find that these applications were invalidated , and
Mr Dykema’s rights to just administ rative action were extinguished by the expiration
of the suspension, would run counter to the rationale for the suspension in preserving
rights and preventing prejudice to land developers.
It would also lead to arbitrary results in making an applicant’s right to a decision
dependent on how quickly the Tribunal processed the application. It would mean that
two validly submitted applications could have different fates for arbitrary reasons
pragmatic blend of logic and experience” , as this Court put it in Bengwenyama Minerals (Pty) Ltd v Genorah
Resources (Pty) Ltd [2010] ZACC 26; 2011 (4) SA 113 (CC); 2011 (3) BCLR 229 (CC) at para 85.
By contrast, where the validity of an administrative act is challenged collaterally, a court has no discretion to allow
or disallow the raising of the defence of invalidity. This absence of discretion is due to the fact that “the right to
challenge the validity of an administrative act collaterally arises because the validity of the administrative act
constitutes the essential prerequisite for the legal force of the action that follows” (Oudekraal at para 36, affirmed
in Merafong at para 32).
The Oudekraal / Kirland doctrine is not at issue here because the legality of the Tribunal’s decision (an initial act)
is being collaterally challenged by a private party rather than a subsequent act whose validity may depend on the
Tribunal’s decision and would thus require the review of the Tribunal’s decision.
55 Gauteng Development Tribunal above n 2 at para 73.
56 See section 6(2)(g) read with section 6(3) of the Promotion of Administrative Justice Act 3 of 2000.
FRONEMAN J
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beyond the applicant’s control. Perhaps the application lodged earlier might be
neglected and thus not be finalised before the expiry date, while the application
submitted much later might have been quickly processed and thus only require
post-approval implementation after the expiration date. We cannot countenance such
incongruous results without a clear indication from the Gauteng Development Tribunal
judgment itself that this was the intended legal consequence of the suspension expiring
without remedial legislation being in place. The Court’s rationale for the suspension
points in the opposite direction by seeking to preserve rights and prevent such
administrative disruption.57
Reinforcing the strength of this approach is that it was anticipated that remedial
legislation would be in place by the expiration date to deal with any pending
applications. Taken together, the rights-preserving rationale of the suspension and the
constitutional imp erative of remedial legislation support the view that applications
submitted, but not finalised, before the expiration date remained valid as pending
applications when the suspension period ended on 17 June 2012.58
It remains to be seen whether the remedial legislation implies that thes e
applications were left hanging out to dry and eventually wither away, or whether they
are capable of being treated as “pending” under section 60(2)(a).
Section 60(2)(a) of SPLUMA
Section 60(2)(a) of SPLUMA reads as follows:
“All applications, appeals or other matters pending before a tribunal in terms of section
15 of the Development Facilitation Act, 1995 . . . at the commencement of this Act that
have not been decided or otherwise disposed of, must be continued and disposed of in
terms of this Act.”
57 Gauteng Development Tribunal above n 2 at para 81.
58 Id.
FRONEMAN J
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The majority of the Supreme Court of Appeal was emphatic in holding that the
application was not pending in terms of the section:
“The question for decision is whether Mr Dykema’s application was pending before
the Tribunal on 1 July 2015, notwithstanding that on 17 June 2012 the Tribunal had
ceased to have any authority to determine it. The short answer is ‘No’. The Concise
Oxford Dictionary defines ‘pending’ as meaning ‘awaiting decision or settlement’. The
rather longer definition in the Shorter Oxfo rd English Dictionary is ‘remaining
undecided, awaiting settlement; orig of a lawsuit’. The Collins English Dictionary says
that ‘if something such as a legal procedure is pending, it is waiting to be dealt with or
settled’. The position is no different in American English. The Merriam -Webster
dictionary gives as the definition of pending in its adjectival sense ‘not yet decided:
being in continuance’. Black’s Legal Dictionary has ‘Remaining undecided; awaiting
decision <a pending case>’. Implicit in each of these definitions is that what is pending
is still capable of being determined, which had ceased to be the case with Mr Dykema’s
application.”59
In support of the proposition that what must still be determined can only be done
by the body before which the application was launched, it stated:
“That a legal suit, or an application to an administrative tribunal, such as Mr Dykema’s
to the Tribunal, is only pending if the court or administrative tribunal still has the power
to hear and dispose of it appears clearly from two cases, the one from Canada and the
other from New Zealand. In Garnham v Tessier it was said: ‘‘Litigation pending’, as
here used means any legal proceeding, suit or action remaining undecided or awaiting
decision or settlement.’ The following statement appears in National Bank of New
Zealand Ltd v Chapman:
‘A legal proceeding can be said to be ‘pending’ as soon as it has been
commenced and it remains pending until it has been concluded, that is,
so long as the court having original cognizance of it can make an order
on the matters in issue, or to be dealt with, therein.’
I am satisfied that these statem ents correctly reflect the meaning of pending in the
present context.”60
59 Supreme Court of Appeal judgment above n 26 at para 14.
60 Id at para 16.
FRONEMAN J
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The dictionary meaning of pending includes the minimal one of merely
“awaiting decision or settlement”. 61 The implication of it being capable of being
determined only by the body where the matter originated is not necessitated by this
ordinary meaning. The Supreme Court of Appeal’s more demanding interpretation of
“pending”, in tying the fate of an applicatio n to the continued competence of the same
decision-maker, is not a logical necessity . Textually then, there is no obstacle to the
present application being one “pending” to be continued and disposed of in terms of
SPLUMA before another competent authority, not the Tribunal.62
Further, the legislative history of the enactment of SPLUMA does not support
the majority of the Supreme Court of Appeal ’s view that it could not have been the
intention of the Legislature to cover any lacuna through retros pective effect, since the
gap did not exist at the time of the publication of SPLUMB. The pre-expiration version
of SPLUMB underwent significant changes. We do not need to delve deeply or at all
into the correspondence and detailed account of the drafting debates provided by the
SAACPP to reach this interpretation.63 Instead, we simply need to consider the evolving
versions of SPLUMB combined with the timeline of SPLUMA’s enactment.64
61 Id at para 14.
62 See the formulation of section 60(2)(a) of SPLUMA as quoted above at [ 63].
63 There has traditionally been some reluctance by our courts to rely on travaux préparatoires (drafting histories)
in statutory interpretation, such that the admissibility of extrinsic material of this kind has been uncertain. See, in
this regard, Nissan SA (Pty) Ltd v Commissioner for Inland Revenue [1998] ZASCA 59; 1998 (4) SA 860 (SCA)
at 870H -871B. This traditional scepticism seems to be subsiding, with this Court having drawn on statutory
drafting history on several occasions, albeit with careful circumspection. See, for exam ple, Western Cape
Provincial Government: In re DVB Behuising (Pty) Ltd v North West Provincial Government [2000] ZACC 2;
2001 (1) SA 500 (CC); 2000 (4) BCLR 347 (CC) at fn 74; Du Plessis v De Klerk [1996] ZACC 10; 1996 (3) SA
850 (CC); 1996 (5) BCLR 658 (C C) at para 84; and Case v Minister of Safety and Security; Curtis v Minister of
Safety and Security [1996] ZACC 7; 1996 (3) SA 617 (CC); 1996 (5) BCLR 609 (CC) at para 12. Our
consideration of the evolving iterations of SPLUMB in the present matter does n ot push any interpretive
boundaries in this regard, but in finding it unnecessary to delve into the drafting history here we also do not close
the door for exploring this possibility in future.
64 The first draft of SPLUMB, published on 6 May 2011, provided that Tribunals would continue to function until
all pending matters were decided upon. The first reference to applications submitted in terms of the DFA being
dealt with under SPLUMA was only recorded on 18 September 2012 (after the expiry of the suspension) following
a Parliamentary Portfolio Committee meeting. This led to the 5 August 2013 iteration of SPLUMB, which
provided that all applications submitted in terms of the DFA, but not finalised, were to be decided and disposed
of in terms of SPLUMA.
FRONEMAN J
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It simply cannot be accepted that in 2013, when SPLUMA was enacted, the
Legislature was unaware of the gap . A whole year had passed since the suspension
period had expired. Given this context , the purpose of section 60 can hardly be the
limited “boilerplate” one favoured by the majority of the Supreme Court of Appeal .65
Indeed, the formalistic interpretation adopted by the majority of the Supre me Court of
Appeal is clearly at odds with a purposive interpretation which recognises the
inevitability that Parliament knew about the gap and would have sough t to address its
consequences through the subsequent enactment of SPLUMA.
The wording of section 60(2)(a) lends support to this purposive interpretation. It
applies to matters “that have not been decided or otherwise dispos ed of”. This
formulation is amenable to an interpretation that these applications are “pending” for
the purposes of SPLUMA, and remain ripe for resolution by the new competent
decision-making body in terms of section 60(2)(a). Even if one rules out the application
of the word “decided” , because the Tribunals had no decision-making power, one can
look to “otherwise disposed of”. Mr Dykema was not told by the Tribunal that it was
unable to decide and finalise his application. He was not told what steps were necessary
to ensure such finalisation. His application had not been formally referred to, or
finalised by, a competent decision -making body. It had not been disposed of at all.
Instead, it had been left in limbo. It was the clear purpose of section 60(2)(a) and
SPLUMA more generally to cater for such applications that had been left in limbo. Mr
Dykema never withdrew or abandoned the application, and it was never refused or
correctly referred onwards for resolution and disposal.
Not only would it be invidious not to afford Mr Dykema justice as secured by
this interpretation, but legal doctrine as well as logic favour him. First, we are obliged
in interpreting the provisions of SPLUMA to promote the spirit, purport and objects of
the Bill of Rights.66 Second, if we accept – as Mr Dykema eventually conceded – that
65 Supreme Court of Appeal judgment above n 26 at para 20.
66 Section 39(2) of the Constitution sets out this imperative as follows:
FRONEMAN J
26
the November 2012 Tribunal decision is invalid and that life cannot be breathed into it
by doctrines applying to courts of law, 67 then, on 17 June 2012, Mr Dykema’s
application was indeed “pending” for the reasons already set out in this judgment.
Both the majority of the Supreme Court of Appeal and Mr Malebane emphasised
the practical difficulties that would arise from treating all unprocessed Tribunal
applications as at 17 June 2012 as “pending” under SPLUMA. They are correct in this.
Applications that would have been regarded as dead may now revive, provided they,
like Mr Dykema’s, were “pending” on 17 June 2012. This practical impact of holding
for Mr Dykema is , however, tempered by the fact that applications that have been
abandoned or waived will not revive.
What the majority of the Supreme Court of Appeal does not, however, confront,
is that the practical consequences of the converse position are even less palatable. It is
not plausible that this Court could have envisaged that application s would continue for
a two-year period until the invalidity order took effect, yet all applications properly
lodged within that time became defunct, without more, when the order took effect.
Given this, to hold SPLUMA applicable to applications “pending” on the crucial date
seems the more plausible interpretive conclusion, as well as being more just. I therefore
consider the most coherent, sensible and fair conclusion , based on an interpretation
which is sensitive to text, context and purpose, to be that Mr Dykema’s application is
pending in terms of the section because it had not been “otherwise disposed of, [and
therefore] must be continued and disposed of in terms of this Act”.
Costs
The root cause of the legal uncertainty in the dispute before us was Parliament’s
non-compliance with this Court’s order in Gauteng Development Tribunal. Both
Mr Dykema and Mr Malebane’s applications were stranded in the legal no man’s land
“When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
67 Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A).
FRONEMAN J
27
between the DFA and SPLUMA . They were equally entitled to seek legal clarity on
their respective applications and it therefore seems just that each party should bear its
own costs not only in this Court but also in the earlier litigation.
Order
In the result, the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the Supreme Court of Appeal is set
aside.
3. Mr Dykema’s application submitted in terms of the Development
Facilitation Act 67 of 1995 is declared to be “pending” under
section 60(2)(a) of the Spatial Planning and Land Use Management
Act 16 of 2013 and must accordingly be disposed of in the manner
prescribed by section 60 of the Spatial Planning and Land Use
Management Act 16 of 2013.
4. Each party is to pay its own costs, both in this Court and in respect of the
litigation in the High Court and the Supreme Court of Appeal.
For the Applicant:
For the First Respondent:
For the Amicus Curiae:
M C Erasmus SC and D J van Heerden
instructed by Adriaan Venter Attorneys.
S J du Plessis SC instructed by Kuilman
Mundell and Arlow Attorneys.
A Liversage SC, J Hlongwane, L Kotze
and S Manganye instructed by Prinsloo
Bekker Attorneys.