City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board and Others (58705/2015) [2017] ZAGPPHC 580 (29 June 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 58705/2015

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

DATE: 29/06/2017

CITY OF JOHANNESBURG METROPOLITAN APPLICANT

MUNICIPALITY

and

CHAIRMAN OF THE NATIONAL BUILDING

REGULATIONS REVIEW BOARD 1st

RESPONDENT

ATC SOUTH AFRICAN WIRELESS

INFRASTRUCTURE (PTY) LIMITED 2nd

RESPONDENT

PJJ VAN VUUREN BELEGGINGS (PTY) LIMITED 3rd

RESPONDENT

CARRY-ANN WILLIAMSON-LOUW 4rd

RESPONDENT

FABIAN LOUW

5th RESPONDENT

CHRISTY ROUX 6th

RESPONDENT

WARREN ROUX 7th

RESPONDENT

SHIONA BLUNDELL 8th

RESPONDENT

KEITH KEYS 9th

RESPONDENT

MINISTER OF TRADE AND INDUSTRY 10th

RESPONDENT

NATIONAL REGULATOR FOR COMPULSORY

SPECIFICATIONS 11th

RESPONDENT

JUDGMENT

THOBANE AJ,

Introduction

[1] The applicant seeks an order in the following terms;

"1. Section 9 of the National Building Regulations and Building Standards Act No 103 of 1977 and the Review Board Regulations dated 13 September 1985 are declared to be unconstitutional and invalid.

2. In the alternative to 1 above, it is declared that the National Building Regulations Review Board's power under section 9 and

the said Regulations, in the event of its upholding an appeal, is limited to referring the application in question back to the local authority for reconsideration.

3. In addition to 1 and 2 above, the decision of the Review Board of 31 March 2015 dismissing the applicant's objection in limine to the said appeal of the fourth to ninth respondents is reviewed and set

aside.

4. The appeal of the fourth to ninth respondents pending before the National Building Regulations Review Board, under the chairmanship of the first respondent, against the decision of the applicant to approve the application of the second respondent for permission to construct a cellphone mast on Portion 67 (Remaining Extent of Farm Oliewenhoutpoort No. 196, Registration Division I.Q., Gauteng is declared to be unlawful and void ab initio.

5. Payment of the applicant's costs by those respondents who oppose the ·application, jointly and severally.

…...................

…...................."

Parties

[2] The following are the role players in this application:

2.1. The applicant is the City of Johannesburg Metropolitan Municipality, (hereinafter referred to interchangeably as "the City" or the applicant), a municipality duly established in terms of the Municipal Systems Act, 32 of 2000. The City brings this application,

in the main, to have section 9 of the National Building Regulations and Building Standards Act, 103 of 1977, (the National Building

Standards Act), declared constitutionally invalid. A further order sought is to review and set aside the decision of the Review Board dismissing the points in limine raised before it.

2.2. The first respondent is the Chairman of the National Building Regulations Review Board a statutory entity registered in terms of

the National Building Standards Act. The first respondent does not oppose the application and has elected to abide the decision of the court.

2.3. The second respondent is the entity that applied to the City for approval of plans to erect a cellular mast. The application made was in terms of the City's policy as well as the National Building Standards Act. The second respondent has filed a notice to abide as well as an affidavit expressing support for the main relief sought in the application.

2.4. The third respondent is the owner of the immovable property on which the cellular mast was intended to be or is erected. No order is sought against the third respondent.

2.5. The fourth to ninth respondent are residents or owners of properties adjoining the property on which the cellular mast was to be or is constructed. They have elected not to file either- a notice fo abide or any opposing papers. They also had the points in limine decided in their favor.

2.6. The tenth respondent is the Ministry of Trade and Industry. It is the ministry tasked with the administration of the National Building

Standards Act. The tenth respondent opposes the application to the extent that applicant seeks an order of invalidity of section 9 of the Act. The grounds of opposition are set out more succinctly below.

2.7. The eleventh respondent is the National Regulator in the administration of the National Buildings Standards Act. No order is sought against the regulator who has been joined on account of his possible interest in the outcome of the application. The eleventh respondent has also chosen to abide.

Background

[3] The following background facts as sketched by the applicant, which are not placed in dispute, are necessary to state;

3.1. During June 2012 the second respondent applied for a "Yellow Wood Tree Mast" (hereinafter referred to as 'the application'),

on a property in Oliewenhoutpoort in terms of the Cellular Mast Policy as well as the Building Regulations of the City of Johannesburg;

3.2. In terms of City policy adjacent property owners according to the Building Control Officer, who might be affected by the application,

are to be invited in writing to forward their comments in writing. The application is further to be referred to the Ward Committee. All this appears to have been done;

3.3. Two of the land or property owners, fourth and fifth- respondent, objected to the application. They were nevertheless advised by the Executive Director: Development Planning, through a letter dated

5 December 2012 that the Building Control Officer, and therefore the City, had taken a decision to approve the application.

3.4. The fourth and fifth respondent were joined by four

other seemingly land or property owners and together they launched an appeal against the approval of the application to the National Building Review Board.

3.5. In the Notice of Appeal nine grounds of appeal are raised, namely;

3.5.1.That the plans as submitted to the City have not been approved;

3.5.2. That there was a failure by applicant and the second respondent to request adjoining land owners and affected land owners to comment;

3.5.3. That there was non-compliance with section 4(3)(a) of the National Regulations and Buildings Standards Act, 103 of 1977 and paragraphs A5 and A6 of the National Building Regulations;

3.5.4. That there was non-compliance with the Town Planning Ordinance No. 15 of 1986;

3.5.5. That there was incompetence on the part of the applicant in not properly considering whether the structure sought to be constructed

and the radio emissions therefrom will probably or in fact be dangerous to life;

3.5.6. That there was disfigurement of the area and unsightly and objectionable nature of the mast;

3.5.7. That there would be adverse impact on property values;

3.5.8. That there was failure on the part of the second respondent to provide accurate information on existing masts;

3.5.9. That there was failure on the part of the applicants, in the application for construction of a mast, to apply for multiple access rights to the property on which the mast would be embedded.

3.6. Applicant and second respondent took issue, in limine, with the locus standi of the "appellants" as well as the jurisdiction of the Review Board in entertaining the appeal.

3.7. The in limine points raised were dismissed by the Review Board.

3.8. The City thereafter launched this application in which it seeks an order to have section 9 of the National Building Standards Act

declared unconstitutional and therefore invalid. In the alternative, that section 9 be interpreted in conformity with the Constitution of the Republic of South Africa. In addition, the applicant seeks an order reviewing and setting aside the decision setting aside the points in limine dismissed by the first respondent.

Applicant's submissions

[4] The applicant submits as follows;

4.1. That section 9 to the extent that it seeks to empower the Review Board, an. organ of state in the national governmental sphere of government, to exercise powers in usurpation of the functions of the municipality, should be declared unconstitutional and therefore

invalid;

4.2. That in the alternative, section 9 of the National Building Standards Act should be interpreted with a Constitutional slant to mean in the event of an appeal being upheld, the matter ought to be referred back to the local municipality concerned for reconsideration.

4.3. The applicant further seeks an order reviewing and setting aside the decision of the Review Board and lists two reasons, both of which were raised before the Review Board in limine, why the Review Board erred, namely;

4.3.1. That the Review Board lacked the requisite jurisdiction to hear the appeal, in that the Review Board could not set aside the approval of a Building Control Officer but only a refusal of an application brought at the instance of an aggrieved party; and,

4.3.2. That the fourth to ninth respondent lacked the requisite locus standi to bring the appeal inter alia because they were not parties to the application for approval for construction of a cellular mast. It is contended that the only available avenue at their disposal, at the time, was to apply for review.

4.4. That to the extent that th applicant seeks an order in terms of prayer 3 of the Notice of motion, which, according to the applicant

is unopposed, for the setting aside of the Review Board's decision raised in limine by the applicant, such a prayer stands to be granted.

Tenth respondent's submissions

[5] The tenth respondent limits the opposition of the application to the following;

5.1. That the applicant ought to have utilized intergovernmental dispute resolution mechanisms before resorting to the courts and that these have not been be exhausted;

5.2. That the application is premature in that the National Building Standards Act was currently under revision and that by the time that the court delivers its judgment, the scenery would be different;

5.3. That the applicant has failed to show that the first respondent, as a matter of fact has made orders that usurp the powers bestowed on the City.

5.4. That the application be dismissed.

Issues

[6] The issues for determination in this matter are threefold;

6.1. Wether the first respondent as an organ of state in the national sphere, is usurping the powers of the City, through the provisions of section 9 of the National Building Standards Act. That if it were so, whether the-impugned section falls to be declared

unconstitutional and therefore invalid.

6.2. Whether in interpreting section 9 as conforming with the Constitution, should section 13(4} be interpreted to mean that the Review Board in the event it upholds the appeal, its powers are limited to referring the application back to the City for reconsideration.

6.3. Whether the appellants before the Review Board, lacked requisite locus· standi and that the Review Board did not have the requisite jurisdiction to deal with the appeal.

The legal framework

[7] The legislative powers of municipal councils are set out in section 156 of the Constitution. The section reads as follows;

“Powers and functions of municipalities

156. (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.”

[8] As is clear from above, the Constitution grants a municipality powers to make and administer by-laws for the effective administration of the matters which it has the right to administer. Further, a municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to., the effective performance of its functions.

[9] The power to formulate legislation is also availed equally to both the

National and Provincial sphere of government. The implementation and administration of laws, though originating from the national as well as the

provincial sphere, is however the domain of local government. It follows that Municipal Planning, of which the approval of a cellular mast is part, is firmly within the terrain of local government for it is listed in Schedule 4 Part B of the Constitution.

[10] The impugned section of the National Buildings Standards Act, section 9, reads as follows;

"9. Appeal Against Decision of Local Authority

(1) Any person who-

(a) feels aggrieved by the refusal of a local authority to grant approval referred to in section 7 in respect of the erection of a building;

(b) feels aggrieved by any notice of prohibition referred to in section 10; or

(c) disputes the interpretation or application by a local authority of any national building regulation or any other building regulation or by-Jaw, may, within the period, in the manner and upon payment

of the fees prescribed by regulation, appeal to a review board.

(2) The review referred to in subsection (1) shall consist of

(a) a chairman designated by the Minister; and

(b) two persons appointed for the purpose of any particular appeal by the said chairman from persons whose names are on a list compiled in the manner prescribed by regulation."

[11] Section 20 of the National Buildings Standards Act empowers the Minister to make regulations with regards to appeals. The sections

reads as follows;

"20. Regulations

(1) The Minister may make regulations-

(a) regarding the procedure to be followed at the hearing of an appeal by a review board;

(b) regarding the powers, duties and functions of a review board, including the power to summon witnesses for the purposes of hearing an appeal and to administer an oath or to accept an affirmation from any witness;

(c) regarding the costs in connection with an appeal to a review board;

(d) to prescribe the further matters in respect of which an appeal may be lodged with a review board;

(e) in order, with the concurrence of the Minister of Finance, to

prescribe the remuneration and travel and subsistence allowances payable to members, except members in the full- time employ of the State or the bureau, of a review board;

(f) regarding any other matter which in terms of this Act is required or permitted to be prescribed by regulation.

(2) Any regulation made under this section may prescribe that any person who contravenes or fails to comply with such regulation shall be guilty of an offence and liable on conviction to a fine not exceeding R200 or to imprisonment for a period not exceeding 2 months."

[12] The Review Board Regulations GN 2074/1985 were published under Government Gazette number 9927 on 13 September 1985. They provide detail on the National Buildings Standards Act and give effect thereto. The l3oard is populated by a chairperson who is a ministerial designee. For appeal purposes the chairperson appoints two persons to sit with him/her, in accordance with the provisions of section 9(2)(b) of the Act. In relation to appeals the regulations provide as follows in regulation 13;

"13. (1) The decision of the board shall be taken by majority vote.

(2) Any proceedings before the board may be adjourned by the chairman to such a date, time and place as he may deem fit.

(3) The board may at anytime prior to its final decision in its discretion order any proceedings to be re-opened for the purpose of hearing or considering further evidence or arguments which, as may be directed by the board, may be either oral or written.

(4) The board may-

(a) dismiss the appeal and confirm the refusal or any conditional

approval of the local authority; or

(b) uphold the appeal in whole or in part, and

(c) order the local authority to pay a successful appellant an amount equivalent to the amount paid by the appellant in terms of regulation 9(3), or any part of such amount. "

[13] The approval for erection of cellular mast is further regulated by a policy document of the City of Johannesburg. The document lays down, inter alia, procedures to be followed when submitting an application for such approval. In terms of the policy, the normal procedures to be followed are the same as those followed when submitting building plans.

Analysis

[14] It is important to state that the powers and functions allocated to National, Provincial and Local spheres of government are clearly delineated. It is impermissible for one level of government to usurp functions of another sphere. If the usurpation is in terms of legislation, then such legislation, or at the very least the empowering provisions thereof, would be inconsistent with the Constitution. The contention that the approval of building plans falls under the functional area of "municipal planning" is in my view a correct one. The courts have over time had occasion to deal with the clash of powers. In Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) a matter dealing with issues similar to those under consideration in this matter, the court gave a clear delineation, with reference to the Constitution, of the powers of the various spheres. The court said the following;

“[53] The Constitution confers "planning" on all spheres of government by allocating "regional planning and development" concurrently to the national and provincial spheres, ''provincial planning" exclusively to the provincial sphere, and executive authority over, and the right to administer "municipal planning" to the local sphere. The first functional area mentioned also indicates the close link between planning and development. Indeed it is difficult to conceive of any development that can take place without planning. "

[54] It is, however, true that the functional areas allocated to the various spheres of government are not contained in hermetically sealed compartments. But that notwithstanding, they remain distinct from one another. This is the position even in respect of functional areas that share the same wording -like roads, planning, sport and others. The distinctiveness lies in the level at which a particular power is exercised. For example, the provinces exercise powers relating to "provincial roads" whereas municipalities have authority over "municipal roads". The prefix attached to each functional area identifies the sphere to which it belongs and distinguishes it from the functional areas allocated to the other spheres. In the example just given, the functional area of ''provincial roads" does not include "municipal roads". In the same vein, '”provincial planning” and “regional planning and development” do not include “municipal planning”.

[55] The constitutional scheme propels one ineluctably to the conclusion that, barring functional areas of concurrent competence, each sphere of government is allocated separate and distinct powers which it alone is entitled to exercise. Of course, the constitutionally mandated interventions in terms of sections 100 (national interventions in the provincial sphere) and 139 (provincial interventions in the municipal sphere) constitute an exception to the principle of relative and limited autonomy of the spheres of government. "

[15] The court continued;·

''[59] The legislative authority in respect of matters listed in Part B of Schedule 4 vests in the national and provincial spheres concurrently, while the legislative authority over matters listed in Part B of Schedule 6 vests in the provincial sphere exclusively. But the national and provincial spheres cannot, by legislation, give themselves the power to exercise executive municipal powers or the right to administer municipal affairs. The mandate of these two spheres is ordinarily limited to regulating the exercise of executive municipal powers and the administration of municipal affairs by municipalities."

[16] In the above matter the issue for determination was the constitutionality of Chapters V and VI of the Development Facilitation Act 67 of 1995. These chapters authorized provincial development tribunals established in terms of the Act to determine applications for the rezoning of land and the establishment of townships. The Constitutional Court confirmed the order of invalidity granted by the Supreme Court of Appeal in respect of the impugned chapters. The court found that the tribunals encroached on the exclusive competency of local government.

[17] Even more apt is the judgment of Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v City of Cape Town and Others 2014 (5) BCLR 591 (CC); 2014 (4) SA 437 (CC), where the court had to deal with the unconstitutionality of a section in an Ordinance that

gave provincial government the power to decide appeals against municipalities' planning decisions and to replace them with its own. The question was whether direct provincial intervention in particular municipal land-use decisions is compatible with the Constitution’s allocation of functions between local and provincial government. The Constitutional Court found that ' .......the constitutional scheme does not envisage the province employing appellate power over municipalities' exercise of their planning functions'.

[18] By parity of reasoning, it follows that a Review Board can not employ appellate power over municipalities' exercise of municipal

planning functions, of which approval of an application for erection of a cellular mast is one. To the extent that the Review Board

derived this power from legislation, such empowering portion falls to be set aside for want of constitutionality. See (Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others; 2016 (4) BCLR 469 (CC); 2016 (3) SA 160 (CC)).

[19] The three grounds of opposition, referred to in paragraph 5 above, must be rejected. The tenth respondent correctly states that he has no interest in the dispute between the parties. However an assertion is made that there has been noncompliance with Chapter 3 of the Constitution on the part of the applicant in that there was a failure to utilize intergovernmental dispute resolution mechanisms. This contention is rejected on the basis that the dispute in this instance does not concern two organs of state or different governments. This matter is about the unconstitutionality of portions of a piece of legislation.

[20] That the tenth respondent has embarked on a process to repeal or review the legislation the applicant is aggrieved at, is no reason for this court not to pronounce on the constitutionality or otherwise of the legislation more especially because the tenth respondent has not made known a firm view on the impugned section's unconstitutionality, no firm commitment on its repeal and has provided no time lines for the repeal, if it eventuates, to be effected. It is my finding that the Review Board as a national entity can not exercise appellate power over planning decisions of the municipality.

Review

[21] The applicant has asked that this court review and set aside the decision of the Review Board dismissing the applicant's points, raised in limine, to the effect that;

21.1 the Review Board lacked the requisite jurisdiction to hear the appeal, in that the Review Board could not set aside the approval of a Building Control Officer but only a refusal of an application brought at the instance of an aggrieved party; and

21.2. the fourth to ninth respondent lacked the requisite locus standi to bring the appeal inter alia because they were not parties to the application for approval of construction of a cellular mast. It is contended that the only available avenue at their disposal, at the time, was to apply for review.

[22] Apart from the fact that the adjudication of appeals against decisions of a municipality, a local sphere of government, by the Review Board, a provincial sphere, amounts to usurpation of the powers constitutionally conferred on municipalities, is reason enough to set aside decisions taken at the Board in such circumstances, there is another reason stemming from the applicant's application for review, why the process of appeal was flawed. The applicant correctly points a finger at the fact that the appellants (fourth to ninth respondents) were not parties to the dispute. They were simply "adjacent land owners or any other land owner" who were notified of and invited to comment on the application in accordance with clause 8.3 of the City of Johannesburg Cellular Mast Policy. Having received the objections, the applicant approved the application and the adjacent land owners or land owners appealed the decision. The thrust of one of the points in limine raised by the applicant concerning locus is that the objectors were not party to the approval proceedings therefore that they have no standing in the subsequent appeal.

[23] The Supreme Court of Appeal dealt with the applicant's contention in JDJ PROPERTIES v UMNGENI LOCAL MUNICIPALITY 2013 (2) SA 395 (SCA) when Plasket AJA said the following;

''[42] Sections 9(1)(a) and (b) are not of application because they apply expressly to persons who have applied unsuccessfully for approval for the erection of a building or have been prohibited from either commencing or continuing with building operations. I turn to consider whether s 9(1)(c) applies to the appellants.

[43] It appears to me that there are two reasons whys 9(1)(c) does not apply to the appellants. The first flows from the reasoning in Reader. How can a person appeal against a decision taken in proceedings in which he or she was not a party? The essence of an appeal is a rehearing (whether wide or narrow) by a court or tribunal of second instance. Implicit in this is that the rehearing is at the instance of an unsuccessful participant in a process. Persons in the position of the appellants cannot be described as unsuccessful participants in the process at first instance and do not even have the right to be notified of the decision. "

[24] The above approach is the same as the one followed earlier in City of Cape Town v Reader and Others [2008] ZASCA 130; 2009 (1) SA 555 (SCA) where the court pronounced as follows in relation· to section 62 of the Local Government: Municipal Systems Act 32 of 2000;

"[30] But s 62 clearly gives no general right of appeal to those who object to municipal planning permissions and decisions. As I see it, s 62 (1) gives only one whose rights are directly affected by a decision, taken by a person delegated to make such decision, a right to appeal against that decision within the strictures of s 62. That raises the question as to who has a right directly affected by the decision. Although on an initial reading it might appear that anyone who is in some way affected by a decision to grant permission to build (a neighbour, say, who believes that his or her property rights are in some way diminished)

may appeal, that cannot be. How can a person not party to the application procedure itself appeal against the decision that results? And the Constitutional Court held in Walele, to which Jafta JA refers (para 19 of his judgment), that neighbours in the position of the applicants (although they may later challenge the lawfulness and regularity of the permission accorded) have no entitlement to be party to the approval process itself.

[31] This interpretation, that objecting neighbours and others have no right of appeal at all under s 62, is borne out by s 62(3):

‘The appeal authority must consider the appeal, and confirm, vary or revoke the decision, but no such variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision’ (my emphasis). It seems plain that the purpose of s 62 as a whole is to give to the dissatisfied applicant for permission - and to no one else -an opportunity for the matter to be reheard by a higher authority within the municipality. It is only the aggrieved applicant, who has failed to secure the permission sought in his or her application, who is afforded a right of appeal under s 62. For if it were otherwise any appeal would be pointless: only those affected by the grant of permission, or a decision favourable to an applicant, would wish to apply and they could not succeed if the appeal resulted in a revocation or variation of a right that has accrued to the applicant.

[32] Section 62 thus grants no viable appeal at all to a person not party to the planning permission application (or, for that matter, by any other section in the Systems Act). It makes no difference, in my view, whether the objection is to the decision itself, or to the implementation of the decision - for instance by starting building works - or to the completion of that process. It is the decision made by the municipality or its delegee in the case of the application itself that may be appealed against - but only if the outcome of the appeal does not detract from the rights of the successful applicant."

[25] The above dicta emphatically deals with the question whether the fourth to ninth respondent had locus -standi -to -appeal. They simply did not have such locus. It follows that the decision to entertain their "appeal'' was erroneous and falls to be set aside.

[26] Lastly, the applicant contends that its second point in limine on jurisdiction ought to have been upheld by the Review Board. The point in limine was to the effect that the Review Board incorrectly relied on the provisions of section 9 (1) (c). Section 9 (1) (c) reads as follows;

"(1) Any person who-

(a).............

(b) ............

(c) disputes the interpretation or application by a local authority of any national building regulation or any other building regulation or by-law, may, within the period, in the manner and upon payment of the fees prescribed by regulation, appeal to a review board.

[27] On the facts of the above matter, it seems to me clear that the issues before the Review Board were neither about interpretation nor application of any by-law building regulations by the municipality. The applicant is therefore correct in its contention that the interpretation of section 9 (1) (c) as well as the application of the national regulations was incorrectly relied upon. For this reason also the decision of the Review Board falls to be reviewed and set aside.

[28] In the result the following order is made;

1. It is declared that section 9 of the National Building Regulations

and Building Standards Act, No. 103 of 1997, to the extent that it empowers the National Building Regulations Review Board to exercise

appellate power over decisions of a municipality, is unconstitutional and therefore invalid.

2. The decision of the National Building Regulations Review Board dismissing the applicant's points in limine is reviewed and set aside.

3. The appeal of the fourth to ninth respondents pending before the National Building Regulations Review Board against the decision of the applicant to approve an application of the second respondent for permission to construct a cellphone mast on portion 67 (remaining extent of Farm Oliewenhoutpoort No. 196), Registration Division I.Q., Gauteng, is declared unlawful and void ab initio.

4. The tenth respondent is directed to pay the costs which shall include

costs consequent upon the employment of two counsels.

_______________________

SA THOBANE

ACTING JUDGE OF THE HIGH COURT