Automotive Parts and Exports (Pty) Ltd t/a BP Auto Bridge and Others v Chairman: Municipal Appeals Tribunal: Makhado Local Municipality and Others (1235/2018) [2022] ZALMPTHC 3 (25 March 2022)

INTHE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO: 1235/2018

In the matter between:

AUTOMOTIVE PARTS EXPORTS (PTY) LTD

T/A BP AUTO BRIDGE

(Registration number: 1991/004644/07) FIRST APPLICANT

CAPRICORN N1 EAST FILLING STATION CC

T/A TOTAL CAPRICORN PLAZA

(REGISTRATION NUMBER:

2010/155113/23)

SECOND APPLICANT

AYOBA 1 STOP (PTY) LTD T/AN AYOB

MOTORS CALTEX

(Registration Number: 2016/098675/07) THIRD APPLICANT

BANDELIERKOP SENTRUM (PTY) LTD T/A

VIVA BENDELIERKOP

(Registration number: 2013/026656/07) FOURTH APPLICANT

CLASS TRADING 514(PTY) LTD T/A

TOTAL MAKHADO

(Registration number: 2022/0124609/07) FIFTH APPLICANT

And

CHAIRPERSON: MUNICIPAL APPEALS

TRIBUNAL: MAKHADO LOCAL

MUNICIPALITY FIRST RESPONDENT

CHAIRPERSON OF THE MUNICIPAL

PLANNING TRIBUNAL:

MAKHADO LOCAL MUNICIPALITY. SECOND RESPONDENT

MAKHADO LOCAL MUNICIPALITY THIRD RESPONDENT

STONEY RIVER PROP 199 CC

(Registration number: 2006/082032/23) FOURTH RESPONDENT

JUDGEMENT

AML PHATUDI J

Introduction

[1] The Municipal Planning Tribunal- Makhado Local Municipality (MPT) took a decision to approve an application for the establishment of a Township- “Makhado Fuel City” (MFC). The disgruntled members, who opposed the application, launched an appeal. Municipal Appeals Tribunal- Makhado Local Municipality (MAT) considered the application on appeal. They too, took a decision to approve the establishment of MFC. Dissatisfied about the decisions, the first to fifth applicants (the applicants), who are among disgruntled members of the public, now approaches this court with their hats in their hands to review the said decisions, thus, this review application.

[2] The applicants either own or operate petrol stations that are in close proximity to the property where a developer intends to develop MFC. Stoney River Properties 199 cc is the developer and cited in this review application as the forth respondent (the respondent). The first and second respondents are decisions makers as MPT and MAT as functionaries of the third respondent. Invariably, the decisions of first and second respondents constitute ‘decisions’ taken by the third respondent through such functionaries as regulated in terms the provision of the Local Government: Municipal Structure Act 117 of 1998.

[3] The applicants seek orders to review and set aside the decisions of, firstly, the first respondent dated 9 February 2018 and the reasons thereof, dated 11 February 2018, approving the township establishment simultaneously with the removal of restrictive title conditions stipulated on “a part of the remainder of portion 42 of the farm Rondebosch 287 LS…”. The second decision is that of the second respondent dated 20 March 2017 approving the respondent’s township establishment application simultaneously with the removal of restrictive title conditions “on a part of the remainder of portion 42 of the Farm Rondebosch 287 LS…”.

[4] Stoney River Properties 199 CC is the registered owner of the property earmarked for township establishment and intends to develop a petrol filling station. The owner is the forth respondent (the respondent) and the only party that opposes this review application. All other respondents stands to abide by the decision of this court.

Factual background

[5] The respondent is the owner of Remaining Extent of Portion 42 of the Farm Rondebosch 287, Registration Division L.S, Limpopo Province[1] (the property), a piece of land situated along the N1 national road. The property is located on the South Western corner at the intersection[2] of the N1 road that traverses Makhado Town connecting Musina with Polokwane and Gauteng, the R578 road[3] and D2554 road[4].

[6] On or about 10 November 2011, the respondent, in pursuit of its dream in developing MFC, launched an application for the establishment of a township for purposes of a filling station at the identified property. The said application was, however withdrawn.

[7] During September 2015, the respondent launched a fresh application in terms of s 96 read with s 69 of the Town Planning and Townships Ordinance 15 of 1986. In compliance with the Ordinance, the respondent compiled a motivating memorandum. The memorandum states that the establishment of a township shall be “on a part of the Remainder of Portion 42 of the Farm Rondebosch 287 L.S, Limpopo Province…” The advertised application in Limpopo Provincial Gazette on both 18 and 25 September 2015 respectively, describes the property as “a part of portion 42 Rondebosch 287- LS (Remainder), Registration Division L.S, Limpopo Province…”

[8] In the memorandum, the respondent simultaneously applies in term of section 41 and section 47 of the Spatial Planning and Land Use Management Act 16 of 2013 (Spluma), for removal of conditions 2.a (a) (b) (c) from Title Deed T54482/2010: ….”

[9] The applicants featured throughout as objectors to the respondent’s applications before MPT and MAT respectively. The applicants objected on the basis that there were irregularities in the respondent’s application that vitiates the application. Nonetheless, the MPT and MAT found in favour of the respondent.

[10] The irregularities raised at the tribunals, forms the basis of the applicant’s grounds for this review. They contend that there was:

1. Discrepancy in the description of the subject property.

2. Unauthorised and irregular application for the removal of restrictive title conditions.

3. Inadequate engineering services.

4. Noncompliance with sections 6; 7 and 42 of Spluma.

5. The belated introduction of the new documentation.

[11] The respondent opposes the application. The respondent raises an in limine point of an undue delay in terms of launching this review application. Reliance is on PAJA where it stipulates that any proceedings for judicial review must be instituted without unreasonable delay and not later than 180 days after the applicants becoming aware of the impugned decisions and the reasons sought to be reviewed and set aside. The respondent further contend that any delay in launching the applications, should be explained irrespective of whether such delay occurred prior or after the expiry of 180 days prescribed in PAJA.

[12] It is common cause that MAT decided in favour of the respondent on 09 February 2018 and only furnished the applicants with reasons on 11 April 2018. The applicants launched their review application on 8 October 2018. The respondent contends that there is no explanation furnished by the applicants of such a delay. It is the respondent’s submission that absent of such explanation, the applicants’ application falls on its own sharpened sword.

The issue

[13] The issue to determine in this in limine point is whether the applicants unreasonably delayed launching this review application or is out of time as envisaged in terms of s 7(1) of PAJA.

Law

[14] s 7 (1) of Promotion of Administrative Justice Act 3 of 2000 stipulates that ‘any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date—

(a) subject to subsection (2)(c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection (2)(a) have been concluded; or

(b) where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.

[15] The Constitutional Court, through the pen of Brand AJ interpreted s 7(1) in Camps Bay[5] to mean, “the 180 day period starts to run when the person concerned . . . became aware of the action and the reasons for it. Before “the action and reasons]”, nothing happens. In the final analysis, it is awareness of “the action [and reasons]” that sets the clock ticking. (Emphasis added)

[16] Ponnan JA penned in SANRAL v City of Cape Town (66/2016) [2016] ZASCA 122 (22 September 2016), that before the advent of PAJA, ‘it was recognised by our courts that an undue and unreasonable delay on the part of an aggrieved party in initiating review proceedings might cause prejudice to other parties to the proceedings and, that therefore, in such cases, the Court should have the power to refuse to entertain the review. An associated rationale for what became known as the “delay rule‟ was the public interest element in the finality of decisions by repositories of State power, whatever their nature. In this regard, see Oudekraal Estates (Pty) Ltd v City of Cape Town & others [2009] ZASCA 85; 2010 (1) SA 333 (SCA) (Oudekraal 2) para 33. This court, in Wolgroeiers (at 39B-D), held that in the event of a complaint that there was an unreasonable delay in initiating review proceedings, the following had to be decided; (a) whether an unreasonable time has passed and, (b) if so, whether the unreasonable delay ought to be condoned. It held, in relation to the last mentioned enquiry that a court exercises a judicial discretion with regard to all the relevant circumstances. At common law, this rule applied also, in relation to what we now describe as challenges based on the principle of legality’.

[17] In Outa[6], Brand JA explained the purpose and function of the delay rule under s 7(1) of PAJA and its common law predecessor. He quoted Nugent JA who explained in Gqwetha v Transkei Development Corporation Ltd and others 2006 (2) SA 603 (SCA) as follows:

‘[22] It is important for the efficient functioning of public bodies . . . that a challenge to the validity of their decisions by proceedings for judicial review should be initiated without undue delay. The rationale for that longstanding rule . . . is twofold: First, the failure to bring a review within a reasonable time may cause prejudice to the respondent. Secondly, and in my view more importantly, there is a public interest element in the finality of administrative decisions and the exercise of administrative functions. As pointed out by Miller JA in Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41E-F (my translation): “It is desirable and important that finality should be arrived at within a reasonable time in relation to judicial and administrative decisions or acts. It can be contrary to the administration of justice and the public interest to allow such decisions or acts to be set aside after an unreasonably long period has elapsed - interest reipublicae ut sit finis litium. Considerations of this kind undoubtedly constitute part of the underlying reasons for the existence of this rule.”

[23] Underlying that latter aspect of the rationale is the inherent potential for prejudice, both to the efficient functioning of the public body and to those who rely upon its decisions, if the validity of its decisions remains uncertain. It is for that reason in particular that proof of actual prejudice to the respondent is not a precondition for refusing to entertain review proceedings by reason of undue delay, although the extent to which prejudice has been shown is a relevant consideration that might even be decisive where the delay has been relatively slight (Wolgroeiers Afslaers, above, at 42C).’

Evaluation

[18] It is clear from the abovementioned cases how our courts applied the “delay rule” under common law and how it incorporated the rule in interpreting s 7 (1) of PAJA. It is common cause that the applicant became aware of the decision on 9 February 2018 and reasons on 11 April 2018. In my view, the action and reasons that set the clock ticking is that of MAT.[7]

[19] The question is whether the applicants launched their review application after the expiry of 180 days. MAT upheld the respondent’s application by approving the township establishment on 9 February 2018 and finished reasons thereof on 11 April 2018. According to my calculations and computing of days, 180th day was on 08 October 2018. This implies that the applicants launched their application on 180th day. The application is thus within the time prescripts as stipulated in PAJA.

[20] Under common Law, our Courts recognised that the undue and unreasonable delay might cause prejudice to other parties, thus our Courts had to decide whether (a) an unreasonable time has passed and if so (b) whether the unreasonable delay ought to be condoned. Brand JA opined in Outa [8] that s 7(1) requires the same two-stage approach. He penned, ‘the difference lies… in the legislature’s determination of a delay exceeding 180 days is per se, unreasonable. Before the effluxion of 180 days, the first enquiry in applying s 7(1) is still whether the delay (if so) was unreasonable. The delay before the effluxion of prescribed days under PAJA might be unreasonable if it causes prejudice to other party (emphasis added). A party prejudiced must present evidence to that effect.

[21] The respondent failed to demonstrate how the “delay” in launching the review application prejudices him. As Brand JA said in Outa, before the effluxion of 180 days, the first enquiry in applying s 7(1) of PAJA is still whether the delay (if any) was unreasonable. This places the onus to prove the undue delay on the doorstep of a party that raises “undue delay” in opposing the review application.

[22] In any event, the applicants mulled over the “undue delay” before the effluxion of 180 days in their founding affidavit. The deponent say:

I am advised that a review application brought in terms of PAJA must be instituted without unreasonable delay but not later than 180 days after the exhaustion of any internal remedies, such as the appeal, and then after the Applicants were informed of the administrative action or became aware of the action and the reasons for it.

It is submitted that the Applicants did not unreasonably delay in the institution of the review application and brought the matter within the period of 180 days after receiving the reasons from the Appeal Tribunal. Any delay in the institution of the review application must be considered in circumstances where the Fourth Respondent took no steps whatsoever based on the decisions that were granted to exercise its rights in respect of the subject property.

[23] The applicants submit that the respondent suffers no prejudice in that it did not start with the project to date.

[24] In rebuttal to the assertion, the respondent states:

I am also advised that any delay in the launch of a Review Application should be explained by the Applicants, irrespective whether such delay occurred prior to or after expiry of the prescribed 180 (one hundred and eighty) day PAJA statutory period, and in the latter instance, formal Application for Condonation has to be filed to this Honourable Court…

No explanation for this 6 (six) Month delay is furnished by the Applicants in the FA and the only mention of this period, is indeed contained in paragraph 4.90 and 4.91 of the FA where the substantiation for such delay is exclusively based on the allegation that the Fourth Respondent did not take any steps to execute the land use rights granted by way of the MAT decision, which steps would have resuscitated earlier action on the part of the Applicants…

Save for the fact that Applicants are and cannot be au fait with the administrative actions which have been embarked upon by the landowner of the procure vesting of such approved land use rights in the subject property, I am advised that the existence of non-existence of such actions on the part of the Landowner, has no bearing on the unexplained wilful and blatant delay of 6(six) months, which cannot be in dispute. Such fact per se renders such delay inordinate and per se according to my advice, justifies dismissal of this Review Application.

[25] It is common cause that the applicants launched their application within the prescribed time stipulated in PAJA. The respondent raises this point as a delay before the effluxion of time.

[26] In Outa, the court found that the stark reality remains that of the delay in bringing the review application after five years had elapsed since the impugned decisions were taken. The court further held that during those five years, things have happened that cannot be undone (Emphasis added). In casu, there is no evidence of any development, let alone the sod turning of the soil for the project on the piece of land the respondent seeks to establish MFC Township. There is no evidence of prejudice on the part of the respondent.

[27] In my evaluation of the evidence before me, I am unable to find an undue delay on the part of the applicants prior to the effluxion of 180 days prescribed in s 7(1) of PAJA. The in limine point falls to be dismissed. Costs are bound to follow the event.

Grounds for Review

[28] I now deal with the grounds for review, the first being the discrepancy in the description of the subject property.

[29] The respondent describes the property earmark for MFC in its motivating memorandum as “a part of the remainder of portion 42…” When advertising in Limpopo Provincial Gazette calling upon any objection from any interested persons, the respondent describes the property as “A part of portion 42...” The Deed of Grand describes the Property as “Remaining Extent of Portion 42 of the Farm Rondebosch 287, Registration Division L.S. Limpopo Province”.

[30] The applicants contend that they objected to the description of the property set out in the respondent’s application before the tribunals. They state that the description of the property does not depict the correct layout plan for the proposed MFC Township. Put differently, they say that the layout plan does not correspond with the description of the property or does not describe precisely the property intended for the establishment of a Township. As a result, the respondent’s application for Township establishment falls short of the requirements set out in Regulation 18 of the Ordinance.

[31] In response thereto, the respondent indicates, “the contents of the paragraph in applicants’ founding affidavit in which the above mentioned averments are made, are denied”. The respondent indicates that the applicants “do not allege or indicate in what way such alleged discrepancy would per se nullify the validity of Township Applications.”

[32] Participation of members of the public in Township Establishment applications is of paramount importance. It is important to inform members of the public about the precise description of the property intended for the development of such Township establishment. The plans, diagrams or other documents relating to the property must form part of the application. Such plans must correspond with the description of the property as described in the Title Deed.

[33] A proper description of property is of paramount importance because it informs any interested person of an accurate position of such piece of land. The description of property together with its beacon is best described in the Deed of Transfer, commonly known as Title deed.

[34] The Title Deed attached to the respondent’s application before the Tribunals describes the property as “Remaining Extent of Portion 42 of the Farm Rondebosch 287 Registrar Division L.S, Limpopo Province.” The title deed provides accurate measurements of the property. It further unpacks how it came about to be “Remaining Extent of Portion, 42 of the Farm…” It further spells out conditions, such as in casu- “The land shall be used for residential and agricultural purposes”. It is not that amendments to conditions in the Title Deeds are not allowed. All that is required is a proper procedure to effect such amendment(s).

[35] Property description in the respondent’s memorandum filed before the tribunals and advertisements published as required for the application for Township establishment in the Provincial Gazette of 18 and 25 September 2015 respectively, differ materially with the one spelt out in the Title Deed. The advertised application and the respondent’s memorandum differs, in my view, materially with the property as described in the Title Deed.

[36] The locality map accompanying the respondent’s application is non-compatible with the description spelt out in the Title Deed. The Title Deed provides no description of “Erf 1” or “Erf 2” as described in the memorandum. The total area as described in the memorandum is 6.82 hectors whereas the property as described in the title deed measures 10, 2590 hectors. The property described in the Title Deed and owned by the respondent, has not been subdivided into “ervens” or “parts” to give effect to “a part of portion 42” as described by the respondent in its memorandum filed before MPT and MAT respectively.

[37] The description of the property is the kernel pillar in Township Establishment applications. Failure to describe the property promptly as described in the Title Deed collapses the entire application before either MPT or MAT respectively and the rest falls in the collapsed pit created thereby. Thus, the applicants’ review application stands to succeed. Put differently, the MAT and MPT decisions stands to fall into the collapsed pit and on this leg alone, they must be reviewed and set aside. In short, dealing with other grounds for review will be for academic purposes of which time, being of essence, does not permit its wastage.

[38] It is trite law that costs follow the event. The applicants succeed with the review application. They are thus entitled to costs of this application including costs reserved on previous occasions.

[39] I in the result, make the following order:

ORDER

39.1 The respondent’s in limine point on undue delay is dismissed with costs.

39.2 The applicants review application succeeds.

39.3 The decision of Municipal Appeals Tribunal- Makhado Local Municipality handed down on 9 February 2018 together with the reasons thereof dated 11 April 2018, approving the Township Establishment and simultaneous removal of restrictive title conditions on a part of the remainder of Portion 42 of the Farm Rondebosch 287 LS to be known as “Makhado Fuel City”, is reviewed and set aside.

39.4 The decision of Municipal Planning Tribunal-Makhado Local Municipality handed down on 20 March 2017 approving the Township Establishment and simultaneous removal of restrictive title conditions on a part of the remainder of Portion 42 of the Farm Rondebosch 287 LS to be known as “Makhado Fuel City” is reviewed and set aside.

39.5 The fourth respondent is ordered to pay the applicants costs including costs of two counsel where employed.

AML PHATUDI

JUDGE OF THE HIGH COURT

APPEARANCES

FOR THE APPLICANT : Adv. L. Kotze

INSTRUCTED BY : Jacques Classen Inc Attorneys

FOR THE RESPONDENT : Adv. C. Erusmus SC

INSTRUCTED BY : Adriaan Venter Attorneys & Ass

HEARING DATE : Virtually- 12 January 2022

JUDGEMENT DATE : Judgment handed down electronically by circulation to the parties’ legal representatives by email and publication through SAFLII. The date deemed handed down is 25 March 2022.

[1] The property as described in the Deed of Transfer

[2] Now regulated by a traffic circle.

[3] commonly known as the Elim road

[4] commonly known as the Ledig Madombidzha road

[5] Camps Bay Ratepayers and Residents Association and Another v Harrison and Another (CCT 18/10) [2010] ZACC 19; 2011 (2) BCLR 121 (CC); 2011 (4) SA 42 (CC) (4 November 2010) para [57]

[6] Opposition to Urban Tolling Alliance v The South African National Roads Agency Limited (90/2013) [2013] ZASCA 148 (9 October 2013).

[7] After having exhausted the internal remedies.

[8] Opposition to Urban Tolling Alliance v The South African National Roads Agency Limited (90/2013) [2013] ZASCA 148 (9 October 2013).