City of Tshwane Metropolitan Municipality v President of the Gauteng Services Appeal Board and Others (1624/2016) [2017] ZAGPPHC 1065 (13 December 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 1624/2016

Not reportable

Not of interest to other judges

Revised.

13/12/2017

In the matter between:

THE CITY OF TSHWANE METROPOLITAN

MUNICIPALITY Applicant

and

THE PRESIDENT OF THE GAUTENG

SERVICES APPEAL BOARD First Respondent

BRIAN KENNETH HOGG Second Respondent

DANIEL JACOBUS STEYN DE WET Third Respondent

Summary: Town-planning and Townships Ordinance, 15 of 1986 – Question whether approved application for the amendment of a town-planning

scheme published in the Provincial Gazette can be repealed or revoked in terms of section 60 of the Ordinance left open.

Review - Promotion of Administrative Justice Act – Services Appeal Board not entitled to find that an earlier administrative action or notice promulgated in Provincial Gazette was invalid or a nullity unless it has been set aside by a court.

Town-planning and Townships Ordinance, 15 of 1986 – Powers of Services Appeal Board – Services Appeal Board does not have express or implied powers to set aside or ignore notice promulgated in Provincial Gazette.

J U D G M E N T

VAN DER BERG AJ

[1] The applicant is a municipality as contemplated in section 2 of the Local Government: Municipal Structures Act, 117 of 1998. The first respondent is the president of the Gauteng Services Appeal Board (“the board”). The second and third the respondent (jointly referred to as “the owners”) are owners of certain properties, and applied in terms of the Town Planning and Township Ordinance No 15 of 1986 (“the Ordinance”) to have provisions of a town-planning scheme relating to their properties amended. Acting in terms of the Ordinance the applicant directed the owners to pay certain engineering services contributions. The owners were aggrieved by the applicant’s decision and lodged an appeal to the board in terms of the Ordinance. The board made an order striking off the appeal and directed the applicant to pay the expenses incurred by the board.

[2] This is an application to set aside and review that decision, and to have the matter remitted back to the board. The applicant also seeks certain ancillary relief.

[3] The board’s order was based on a finding that the approval of the applicant’s rezoning application and the subsequent

publication of a notice in the Provincial Government Gazette was to be ignored, in that a prior notice of approval which had been

published in a previous Provincial Government Gazette was still in force. The question is whether the board was entitled to have disregarded the second approval and publication.

[4] The application is opposed by the second respondent, who did not file an answering affidavit but delivered a notice of intention to a raise of question of law in terms of rule 6(5)(d)(iii) of the Uniform Rules of Court. The first respondent delivered a notice to abide. The third respondent did not oppose the application.

CONDONATION FOR DELAY IN BRINGING REVIEW APPLICATION

[5] The application for judicial review is brought in terms of Promotion of Administrative Justice Act[1] (“PAJA”). The applicant was accordingly obliged to institute the application without unreasonable delay and within 180 days of the board’s decision, which was on 1 July 2015. The 180 day period expired on 28 December 2015, and the application was instituted on 12 January 2016, i.e. 15 days later than the prescribed period.

[6] Before the matter was enrolled, and before the second respondent entered a notice of intention to oppose, the applicant served an amended notice of motion wherein it sought an order in prayer 1 that the time period of 180 days in section 7(1)(b) of PAJA be extended until 12 January 2016. The extension was sought in terms of section 9(1)(b) of PAJA. Attached to the amended notice of motion was an affidavit deposed to by the applicant’s attorney of record, explaining the reason for the delay.

[7] I am satisfied that the applicant has incorporated as part of the review application the application for an extension of time and that there was for all intents and purposes a substantive application for extension.[2]

[8] I am obliged to deal with the condonation application before dealing with the merits of the review.[3] The manner in which the discretion to extend the statutory time should be exercised has been described as follows:[4]

“And the question whether the interests of justice require the grant of such extension depends on the facts and circumstances of each case: the party seeking it must furnish a full and reasonable explanation for the delay which covers the entire duration thereof and relevant factors include the nature of the relief sought, the extent and cause of the delay, its effect on the administration of justice and other litigants, the importance of the issue to be raised in the intended proceedings and the prospects of success.”

[9] The condonation application was not opposed by the second respondent in its rule 6(5)(d)(iii) notice or in any other manner.

[10] The applicant has furnished a full explanation for the delay, and the extent and cause of the delay. A combination of the applicant’s staff and attorney going on leave in December 2015 and computer problems led to the delay, even though the founding affidavit had been deposed to in October 2015, and the notice of motion had been prepared in September 2015. Although there was slight negligence on the part of the applicant, its explanation is reasonable.

[11] There is no prejudice to respondents. The second respondent and the third respondent had been requested to agree to the extension but they refused without furnishing any reasons for doing so.

[12] The applicant has good prospects of success, as will appear later in this judgment.

[13] I find that it is in the interests of justice that condonation be granted, and I make an order in terms of prayer 1 of the amended notice of motion.

THE FACTS

[14] The facts contained in the founding affidavit are uncontested, and can be briefly be summarised as follows:

[14.1] The second respondent and third respondents are the registered owners of erven 20 and 21, Menlyn Extension 3 respectively. They applied on 12 August 2008 in terms of section 56(1) of the Town-planning and Townships Ordinance, 15 of 1986 (“the Ordinance”) to have provisions of the Tshwane Town Planning Scheme, 2008 relating to their properties amended from “residential 1” to “business 1” (“the application”).

[14.2] The application was initially approved by the application on 30 July 2010 (“the first approval”) subject to certain conditions which had to be fulfilled prior to the promulgation of the amendment scheme.

[14.3] Notwithstanding the fact that the said conditions had not been complied with, notice of the first approval was given in the Provincial Gazette on 8 September 2010 in terms of section 57(1)(a) (“the first promulgation notice”).[5]

[14.4] In the first promulgation notice reference was made to the wrong properties in the English notice.

[14.5] The applicant and the owners were in agreement that the first promulgation notice was irregular.

[14.6] On 27 October 2010 the applicant published a notice in the Provincial Gazette (“the correction notice”) which inter alia reads as follows:

“It is hereby notified in terms of the provisions of section 60 of the ... Ordinance ... that Local Authority Notice 1180 ... is hereby repealed.

The mentioned property will revert back to its original zoning and shall come into operation on the date of publication of this notice.”

(I return later to the provisions of section 60 of the Ordinance.)

[14.7] The owners had apparently lodged an appeal against the conditions on or about 5 October 2010, but it was withdrawn on or about 16 May 2011 (i.e. after publication of the correction notice.) The particulars of this appeal have not been set out in the papers and are not relevant, although I will again refer to the fact that it was lodged. [6]

[14.8] The application was (again) approved by the applicant on 8 November 2013 (“the second approval”) and notice of the approval was given in the Provincial Gazette on 18 December 2013 (“the second promulgation notice”), in which it was stated that the relevant amendment scheme came into operation on 18 December 2013.

[14.9] On 17 January 2014 the applicant sent a directive in terms of section 63(1)(a) of the Ordinance[7] by registered post to the owners to pay certain engineering contributions.

[14.10] On 14 February 2014 the owners lodged an appeal in terms of section 124(1)(b) of the Ordinance on the basis that they were aggrieved by the decision of the applicant in terms of section 63(1)(a). The owners did not contend in either their grounds of appeal or their points in limine raised at the hearing that any of the correction notice or the second approval or the second promulgation notice was invalid.

[14.11] The board found that there was not a valid appeal in that:

[14.11.1] The first promulgation notice was published on 8 September 2010 and in terms of section 58 of the Ordinance the approved rights commenced from the date stated in the notice, i.e. 8 September 2010.

[14.11.2] Despite the errors contained in the first letter of approval, it was a valid letter of approval and served as the foundation upon which the first promulgation notice was published.

[14.11.3] The correction notice (in terms of which the first promulgation notice was repealed) was a legal nullity.

[14.11.4] The second approval was invalid because the approved scheme had already commenced on 8 September 2010 and the applicant was functus officio.

[14.11.5] The second promulgation notice was invalid and could not serve as a trigger for a section 63 letter.

[14.11.6] The applicant failed to direct the owners to pay the engineering services contribution within 30 days from 8 September 2010, as is required by section 63(1).

[14.11.7] There was accordingly no valid section 63 letter, and there can be no valid appeal.

[14.12] The board accordingly struck the appeal off and ordered the applicant to pay the fees, allowance and expenses contemplated in sections 123(5) and 123(8) of the Ordinance.

ISSUES

[15] Mr Oosthuizen, who appeared for the applicant, submitted the following:

[15.1] That the board’s finding that the correction notice was a legal nullity was wrong;

[15.2] Alternatively, the board was not entitled to find that an earlier administrative action (i.e. the correction notice or the second approval or the second promulgation notice) was invalid. For this submission Mr Oosthuizen relied on the principle as enunciated in inter alia Oudekraal.[8]

[15.3] The board did not have implied or express powers in terms of the Ordinance to have ruled on the legality or validity of the correction notice or the second promulgation notice.

[16] The second respondent in its rule 6(5)(d)(iii) notice contends that the applicant’s attempt to withdraw the first promulgation in terms of the section 60 correction notice was bad in law, as the applicant “could only correct an error or omission, where it was not necessary to prepare an amendment scheme.”

[17] The notice then continues as follows:

“6.1 The Applicant’s assertion that the First Respondent unlawfully or irregularly acted as a review body is without substance.

6.2 As observed by the First Respondent, it was incumbent upon it to establish its jurisdiction to entertain the appeal before it. Clearly it did not have such jurisdiction.

6.3 In any event, the concept of legality was applicable. Where it became clear that the Applicant had acted unlawfully after 8 September 2010, the First Respondent was not entitled or obliged to turn a blind eye to the illegalities that had occurred, and to perpetuate same. In fact, there was a duty upon the First Respondent to raise the illegalities mero motu.”[9]

[18] I now turn to these issues.

SECTION 60 OF THE ORDINANCE

[19] Section 60 of the Ordinance reads as follows:

“Where an authorised local authority is of the opinion that any error or omission in an approved scheme relating to land situated within its jurisdiction may be corrected without the necessity for preparing an amendment scheme, it may, by notice in the Provincial Gazette, correct such error or omission.”

[20] The board held as follows:

“34 Section 60 is designed to rectify administrative errors contained in the promulgation notice (published in terms of section 57 of the Ordinance) without the necessity for the preparation of a further amendment scheme (and all costs intended thereon)...”

[21] Mr Maritz SC, who appeared for the second respondent, submitted that the proviso that “without the necessity for preparing an amendment scheme” indicates that the applicant was not authorised to repeal or revoke the scheme which it has published in the Provincial Gazette on 8 September 2010.

[22] I am inclined to agree with the submission made by Mr Maritz and the reasoning of the board on this issue. I do not however have to come to a final conclusion on this issue, and I will assume without finally deciding, that the applicant was not permitted to revoke or repeal the first scheme by publishing a correction notice in terms of section 60 of the Ordinance.

THE OUDEKRAAL PRINCIPLE

[23] In Oudekraal[10] the Supreme Court of Appeal held that the Cape Metropolitan Council was not entitled to disregard the unlawful approval of a township by the Administrator and all its consequences merely because it correctly believed that the approval was invalid:

“Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and has legal consequences that cannot simply be overlooked. The proper functioning of a modern State would be considerably compromised if all administrative facts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.”[11]

[24] This principle has subsequently been applied by the Constitutional Court, especially in Kirland[12] where Cameron J (writing for the majority) held as follows:

“[101] The essential basis of Oudekraal was that invalid administrative action may not simply be ignored, but may be valid and effectual, and may continue to have legal consequences, until set aside by proper process...

[103] The fundamental notion–that official conduct that is vulnerable to challenge may have legal consequences and may not be ignored until properly set aside–springs deeply from the rule of law. The courts alone, and not public officials, are the arbiters of legality...

For a public official to ignore irregular administrative action on the basis that it is a nullity amounts to self-help. And it invites a vortex of uncertainty, unpredictability and irrationality. The clarity and certainty of governmental conduct, on which we all rely in organising our lives, would be imperilled if irregular or invalid administrative acts could be ignored because officials consider them invalid.”

[25] Cameron J moreover emphasised that Kirland, as the respondent in a potential review application to challenge the approval granted to it, would be entitled to defend the decision, whether on the ground of its validity, or on the ground that it should not be set aside, even if it is invalid.[13]

[26] More recently in Merafong City[14] Cameron J (again writing for the majority in the Constitutional Court) said:

“[44] The import of Oudekraal and Kirland was that Government cannot simply ignore an apparently binding ruling or decision on the basis it is invalid. The validity of the decision has to be tested in appropriate proceedings. And the sole power to pronounce that this decision is defective, and therefore invalid, lies with the courts. Government itself has no authority to invalidate or ignore the decision. It remains legally effective until properly set aside.”

[27] The “vortex of uncertainty, unpredictability and irrationality” referred to by Cameron J in Kirland which may arise should an irregular administrative action be ignored on the basis that it is a nullity is demonstrated by the facts in this case.

[27.1] The effect of the board’s ruling is that the first approval and first promulgation notice will remain valid, notwithstanding the fact that the applicant and the owners were in agreement that the first promulgation notice was irregular.

[27.2] The owners had appealed against the conditions imposed in the first promulgation notice, but had subsequently withdrawn their appeal, seemingly because the first promulgation notice had been repealed in terms of the correction notice. Does board’s decision now revive that appeal? If not, must the owners now abide by the conditions, even if they may have had valid grounds of objecting to those conditions?

[27.3] The board by simply finding that the notices were nullities, deprived any potential respondent (i.e. the applicant or the owners or any other person with sufficient interest in the matter) of raising defences they may have been able to raise had a substantive judicial review application in terms of PAJA been brought to have the correction notice and/or the second promulgation notice set aside. For example:

[27.3.1] Any potential respondent could have opposed the review application on the ground that it should not be set aside, even if the notices were invalid (see Kirland, paragraph [106].

[27.3.2] In such a review application (assuming it was launched at the time the appeal was lodged, i.e. more than three years after the publication of the first promulgation notice) the court may have refused to set aside the first promulgation notice under the PAJA on the basis that the review was not instituted within the period of 180 days period, as prescribed by section 7(10) of PAJA.

POWERS OF THE APPEAL BOARD

[28] If the Ordinance confers powers on the board (whether expressly or implied) to review or ignore invalid prior promulgation notices or correction notices, the principle set out in Oudekraal and subsequent Constitutional Court cases will not enter the equation. It is thus necessary to examine the powers of the board.

[29] Section 123 of the Ordinance provides for the establishment of services appeal board. The section also deals with membership

of the services appeal board and deposits payable in respect of appeals to the services appeal board.

[30] The relevant provisions of section 124 of the Ordinance read as follows:

”124. Appeals re Services Appeal Board. –(1) Where-

(b) any person is aggrieved by a decision of a local authority in terms of section ....63(1)(a)..

he may...

(i) within a period of 28 days from the date he was notified in writing by the local authority of the decision, or within such further

period, not exceeding 28 days, as the Director may allow; ..

appeal through the Director to the Services Appeal Board designated by the Director by lodging with the Director a notice of appeal setting out the grounds of appeal, and he shall at the same time provide the local authority with a copy of the notice.

(2) After the provisions of subsection (1) and section 123(6)[15] have been complied with, the Services Appeal Board shall determine a day, time and place for the hearing of the appeal and it shall, not less than 14 days prior to the date so determined, notify every party of the appeal, including the local authority concerned, of the day, time and place so determined.

(3) After a hearing in contemplated in subsection (2), the Services Appeal Board may give any decision it may deem just, and thereupon it shall notify every party to the appeal in the writing of its decision and the reasons therefor.”

[31] The judgment of Steyn CJ in Hager and Others v Windhoek Municipal Council 1961 (3) SA 803 (A) to which Mr Oosthuizen SC referred me to is instructive on the issue of the powers of tribunals established in terms of an ordinance.

[31.1] In that matter a so-called valuation court was established in terms of an ordinance. In terms of the ordinance the valuation court had to consider the valuation roll and objections lodged thereto. Steyn CJ described the powers of the valuation court as follows:[16]

“Although a valuation court is described as a court, it is quite clearly not a court of law with any inherent jurisdiction which may be associated with such a court. It is a special body constituted for a special limited purpose, viz. to determine the values of rateable municipal properties for the purposes of local government. That is its true and only function, and in the performance of that function it cannot exercise any powers beyond those conferred by the ordinance, either expressly or by implication.”

[31.2] A number of owners had objected against the valuations of their properties disclosed in the roll compiled by a valuer. The valuation court had held that the valuer did not apply his mind to the valuations, with the result that the valuation roll was invalid.

[31.3] The court then continued:[17]

“What was before the valuation court, therefore, was a completed roll in actual existence requiring some competent pronouncement in order to put an end to it, and the court was asked to rule that roll out of existence on the ground that the valuer had not properly applied his mind to his tasks. The valuation court could not do so without a jurisdiction ordinarily possessed only by a court of law, and I can find no evidence in the Ordinance of the conferment of any such power or competence.” (Own emphasis)

[31.4] The court then proceeded to consider whether the valuation court had implied powers, and held:[18]

“It is not apparent why it should be necessary for the effective performance of this function, or even reasonably incidental thereto,

for a valuation court to be able itself, in addition to or instead of a court of law, to set aside the whole valuation roll ... The absence of any express power in so important a matter and the fact that two of the three members of the court may be laymen, suggest that the legislature did not have in mind any such duplicated or substituted judicial authority.”

[31.5] Steyn CJ then concluded that the valuation court exceeded its authority in declaring the valuation roll invalid on the ground that the valuer had not applied his mind properly.[19]

[32] There is no express provision in section 123 or section 124 which gives the board the power to determine or rule on the validity of a section 60 notice, or a prior approval or a prior promulgation notice.

[33] In my view it also does not have implied powers to do so.

[34] Firstly, there is nothing in the Ordinance which indicates that it is necessary for the effective performance of the board’s

functions as an appeal tribunal that it should be able to rule on the validity of municipality approvals or promulgation notices.

[35] Secondly, as was the case in Hager, the fact that two of the board’s three members consists of two laypersons[20] suggests that the legislature did not have in mind duplicated or substituted authority.

[36] Thirdly, it is also significant that section 59 of the Ordinance provides for a separate appeal process in circumstances where a person is aggrieved by a decision of an authorised local authority in respect of an application by the owner of land for amendment of a town-planning scheme.[21] The appeal can be brought within 28 days after a promulgation notice has been published.[22] An appeal in terms of section 59 is directed to the Administrator and thereafter to the Township Board, which is established in terms of sections 3 and 4 of the Ordinance.

[37] The legislature carefully circumscribed the powers of the different appeal tribunals: the services appeal board is excluded from dealing with appeals against a decision of an authorised local authority in respect of a rezoning application in terms of section 59. To find that the services appeal board has the power to determine the validity of a promulgation notice would run contrary to the structure of the Ordinance, and would allow the services appeal board to encroach on the territory of the Township Board. (By coming to this conclusion I do not intend to convey that the Township Board may have implied powers to rule on the validity of a promulgation notice, an issue which does not arise in this case.)

THE BOARD’S REASONING AND FINDING ON ITS JURISDICTION

[38] The board rejected a submission made to it that it should not consider matters which are of historical context and should simply

accept the second promulgation notice as a valid notice and the section 63 letter as a valid direction. The board held:

“There is no doubt that the Board is enjoined to ensure that it has the requisite jurisdiction to consider an appeal and a interrogation of these historical legal context of circumstances and facts leading to an appeal is an important element in establishing whether or not the Board, in fact and in law, has the necessary jurisdiction to consider an appeal (sic).”

[39] This finding presupposes that the board could find the second promulgation notice to be invalid.

[40] The steps leading to an appeal in terms of section 124 include the following:

[40.1] The publication of the notice of approval of an application for the amendment of a town-planning scheme in the Provincial Gazette in terms of section 57(1)(a);

[40.2] A direction by a local authority in terms of section 63(1)(a) that the owner must pay contribution to engineering service;

[40.3] The lodging of a notice of appeal settling out the grounds of appeal;

[40.4] The deposit of the prescribed amount of money as security for the payment of the expenses contemplated in section 123(6).

[41] The directive in terms of section 63(1) must merely be posted within the prescribed 30 day period[23] which happened in this matter. Once it is accepted that the second promulgation notice was valid (as the board was obliged to do), it follows that the applicant had complied with its obligations in terms of section 63(1) and that the owners accordingly lodged a valid appeal to the board in terms of the provisions of section 124(1)(b). Accordingly the board did have jurisdiction to hear the owners’ appeal.

[42] The notice of appeal filed by the owners expressly states:

“The appeal refers to the recent promulgation on 18 December 2013 in respect of Erf 20 and Erf 23 Menlyn x 2, Tshwane.”

This is a reference to the second promulgation notice. This was the appeal that was placed before the board, and this is the appeal the board had to deal with. The owners raised a number of points in limine, but did not raise the issue of the invalidity of the second promulgation notice.

[43] The board therefore erred in striking the matter off the roll.

REVIEW OF BOARD’S DECISION

[44] In my view the decision of the board is reviewable on all of the following grounds:

[44.1] In terms of section 6(2)(a)(i) of PAJA in that it exceeded its authority in ruling on the validity of the correction notice and the second promulgation notice.

[44.2] The board was materially influenced by an error of law within the meaning of section 6(2)(d) of PAJA in that it formed the view that it could determine the validity of the second promulgation notice and the correction notice, and that it could ignore the second promulgation notice.

[44.3] The board took into account irrelevant considerations within the meaning of section 6(2)(e)(iii) of PAJA. The board took into account historic facts, which was not within the ambit of the appeal which was placed before it.

COSTS

[45] In the supplementary heads filed after judgment was reserved, it was submitted on behalf of the second respondent that should the review application succeed, it would be just and equitable that the parties be ordered to pay their own costs. The following submissions were made:

[45.1] The applicant acted illegally throughout in respect of the rezoning of the property.

[45.2] Nine years have lapsed since the rezoning application was brought in 2008 and the second respondent has not been able to utilise the property, and it would be adding insult to injury should the second respondent be ordered to pay the costs of the review.

[45.3] The second respondent’s opposition to the application was justified.

[46] I do not agree with these submissions.

[47] There is no evidence that the applicant acted “illegally” and no evidence that the owners objected to the correction notice or the second promulgation notice.

[48] The long delay in the rezoning application is irrelevant to the issue of costs of this application. In any event, there is no evidence that the delay was caused by the applicant. The applicant’s version is that for a period of three years after 19 October 2010 the owners raised numerous “queries”, and the suggestion is made that they were without merit. The matter was also further delayed when the owners lodged the appeal with the board on 14 February 2014, ultimately leading to this review application which was issued on 12 January 2016.

[49] The applicant only sought costs in the event of opposition. By opposing the application, the second respondent increased the costs substantially. There is no reason why costs should not follow the result.

[50] There is an additional factor which has a bearing on costs: The owners were at all stages in agreement with the applicant that the first promulgation notice was irregular, and in lodging the appeal acted on the basis that the second promulgation notice was valid. It is therefore somewhat opportunistic of the second respondent to now side with the board’s decision. If the board’s decision is given effect to, the first promulgation notice will be operative, even though it is common cause that that first promulgation notice was irregular.

[51] Both parties employed senior counsel, and the complexity and importance of the matter justified it. The applicant is

therefore entitled to the costs of senior counsel.

ORDER

[52] I do not think I should make the declaratory orders sought by the applicant to the effect that the applicant had directed the owners to make payment within 30 days after the commencement of the amendment scheme. It may have been common cause in this application that the section 63 letter was posted within 30 days from the date of the second promulgation notice, but it is an issue with which the board was seized but did not rule on because of the mistaken view that the time period should be calculated with reference to the first promulgation notice. I will also not make a declaratory order to the effect that the owners lodged a valid appeal. It is conceivable that the validity of appeal may be challenged on other grounds. The parties should be allowed to address the board on these issues once it is referred back.

[53] I will instead make an order that the board must deal with the issue on the basis that the second promulgation notice is valid, which will avoid this again becoming an issue before the board.

[54] I make the following order:

1. The time period referred to in section 7(1)(b) of the Promotion of Administrative Justice Act (Act 3 of 2000) in which this application must be instituted is extended until 12 January 2016.

2. The order made by the Gauteng Services Appeal Board in the services appeal (ref no GO 15/3/2/2/5/159) in terms of which the second and third respondents’ appeal was struck off and the applicant was ordered to pay the expenses, fees and allowances contemplated in sections 123(5) and 123(8) of the Town-planning and Townships Ordinance, 1986 (Ordinance 15 of 1986) (“the Ordinance”) is set aside.

3. The decision of the Gauteng Services Appeal Board that the applicant failed to direct the second and third respondents to pay the contributions in respect of the provisions of engineering services within 30 (thirty) days from the date on which the Tshwane Amendment Scheme 96T in respect of Erven 20 and 21, Menlyn Extension 3 came into operation is set aside.

4. The matter is remitted to the Gauteng Services Appeal Board for reconsideration of the said services appeal, but on the basis that Local Authority Notice 1787 published in the Provincial Gazette dated 18 December 2013 in respect of Tshwane Amendment Scheme 96T is valid and binding.

5. The second respondent is ordered to pay the costs of the application, including the costs of senior counsel where employed.

_____________________________

Acting Judge of the High Court

APPEARANCES

Counsel for the Applicant:

H.F. Oosthuizen SC

Instructed by:

Kunene Ramapala Inc.

For the Second Respondent:

SJ Maritz SC

Stegmanns Inc

Date of hearing: 14 September 2017

Date of judgment: 13 December 2017

[1] Act 3 of 2000

[2] Asla Construction v Buffalo City Metropolitan Municipality 2017 (6) 360 (SCA) at paragraphs [6] and [8]

[3] Asla Construction( supra) at paragraphs [12] and [13]

[4] Camps Bay Ratepayers’ and Residents’ Association v Harrison [2010] 2 All SA 519 (SCA) at paragraph [54], p 537

[5] The relevant portions of section 57(1)(a) of the Ordinance reads as follows: “Where an authorised local authority has adopted a draft scheme in terms of section 29(2) or has approved an application for the amendment of a town-planning scheme in terms of section 56(9) – (a) It shall forthwith give notice thereof in the Provincial Gazette and state in the notice that a copy of the scheme or the application as approved, as the case may be, will lie for inspection at all reasonable times at its office and the office of the Director, and thereupon- (i) the scheme shall be deemed to be an approved scheme; (ii) the application shall be deemed to be an approved scheme which is an amendment scheme; ... Section 58(1) reads: “An approved scheme contemplated in section 57(1)(a) shall come into operation on a date stated in the notice contemplated in that section; ...”

[5] The relevant portions of section 57(1)(a) of the Ordinance reads as follows:

“Where an authorised local authority has adopted a draft scheme in terms of section 29(2) or has approved an application for the amendment of a town-planning scheme in terms of section 56(9) –

(a) It shall forthwith give notice thereof in the Provincial Gazette and state in the notice that a copy of the scheme or the application as approved, as the case may be, will lie for inspection at all reasonable times at its office and the office of the Director, and thereupon-

(i) the scheme shall be deemed to be an approved scheme;

(ii) the application shall be deemed to be an approved scheme which is an amendment scheme; ...

Section 58(1) reads: “An approved scheme contemplated in section 57(1)(a) shall come into operation on a date stated in the notice contemplated in that section; ...”

[6] On 19 October 2019 an amended approval letter was issued in terms of which certain of the conditions of the first approval were removed. As no effect was given to this approval letter, it is irrelevant to this application.

[7] The relevant portions of section 63(1) of the Ordinance reads as follows: “Where an amendment scheme which is an approved scheme came into operation in terms of section 58(1), the authorised local authority may, within a period of 30 days from the date of the commencement of the scheme, by registered letter direct the owner of land to which the scheme relates to pay a contribution to it in the respect of the provision of – (a) the engineering services contemplated in Chapter V where it will be necessary to enhance or improve such services as a result of

the commencement of the amendment scheme; ...”

[7] The relevant portions of section 63(1) of the Ordinance reads as follows:

“Where an amendment scheme which is an approved scheme came into operation in terms of section 58(1), the authorised local authority may, within a period of 30 days from the date of the commencement of the scheme, by registered letter direct the owner of land to which the scheme relates to pay a contribution to it in the respect of the provision of –

(a) the engineering services contemplated in Chapter V where it will be necessary to enhance or improve such services as a result of

the commencement of the amendment scheme; ...”

[8] Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)

[9] In the second respondent’s heads of argument reference was made to paragraph [70] of the Merafong (referred to later in this judgment) wherein the court inter alia referred to the defence of collateral challenge. At the hearing Mr Maritz SC disavowed reliance on this defence, which was also not raised in the second respondent’s rule 6(5)(d)(iii) notice. I therefore do not have to deal with the submissions made by Mr Oosthuizen SC (with which I agree) why this defence could not succeed.

[10] Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)

[11] Paragraph [26]

[12] MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3) SA 481 (CC)

[13] Paragraph [106]

[14] Merafong City v Anglogold Ashanti Ltd 2017 (2) SA 211 (CC)

[15] The relevant provisions of section 123(6) read as follows: “Where any person who is not a local authority... (b) appeals to the services appeal board in terms of section 124, he shall deposit forthwith with the Director such amount of money as may be prescribed as security for the payment of the expenses contemplated in subsection (8).”

[15] The relevant provisions of section 123(6) read as follows:

“Where any person who is not a local authority...

(b) appeals to the services appeal board in terms of section 124,

he shall deposit forthwith with the Director such amount of money as may be prescribed as security for the payment of the expenses contemplated in subsection (8).”

[16] At 812 G

[17] At 814 A

[18] At 814 C - E

[19] At 814G

[20] In terms of section 123(2) of the Ordinance, the president shall be an advocate, an attorney or a retired judge or magistrate, one person shall be a professional engineer and one person an accountant and auditor.

[21] Section 59(1)(a)(ii)

[22] Section 59 (1) (1) (ii).

[23] Stands 5/1 Wierda Valley (Pty) Ltd and Another v Sandton Town Council [1993] ZASCA 141; 1994 (1) SA 333 (A)