Crossing Property Investment (Pty) Ltd v Premier of the North West Province and Others (2497/07) [2010] ZANWHC 7 (1 July 2010)

1

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST, MAFIKENG)

CASE NO. 2497/07

In the matter between:-

THE CROSSING PROPERTY INVESTMENT APPLICANT

(PTY) LTD

And

THE PREMIER OF THE NORTH WEST PROVINCE 1ST RESPONDENT

THE MEC OF THE DEPARTMENT OF PUBLIC

WORKS: NORTH WEST PROVINCE 2ND RESPONDENT

SOUTHERN PALACE INVESTMENTS 19 (PTY) LTD 3RD RESPONDENT

CIVIL MATTER

________________________________________________________________________

JUDGMENT

KHOZA AJ.

[1] This application is about the disposal of State land in terms of section 3 of the North West Land Administration Act No. 4 of 2001 (“the Act”).

[2] The Applicant, the Crossing Property Investment (Pty) Ltd alleges that the decision to dispose of certain Erven identified in its Notice of Motion as the Remainder of Erf 1410, Erf 466, Erf 1419, Erf 1420 and Erf 712 situated in Mafikeng, North West Province, was illegal in that the North West Provincial Government, represented by the Second Respondent, failed to comply with the mandatory provisions of the Act in that the notice it issued was not published in the Provincial Gazette and secondly the publication in the local newspaper did not include peremptory and necessary information prescribed by the Act.

[3] Its grounds of review was summarized in its Heads of Argument as follows:-

“Failure to comply with the mandatory provisions of the Act rendered a conduct of the Provincial Government unlawful and therefore illegal in terms of the rule of law;

The inadequate published notice, coupled with the failure and refusal to furnish it on request with the information that the notice should have contained, rendered the administrative action taken by the Provincial Government procedurally unfair and subject to judicial review in terms of section 6 (2) paragraph (c) of the Promotion of Administrative Justice Act No. 3 of 2000 (hereinafter called “PAJA”).”

[4] The Respondents oppose this application principally on the following grounds:-

That the failure to cite the Schools, which are mentioned herein below, was fatal to the application;

The unexplained delay in launching this application was contrary to the provisions of PAJA that require that such applications be brought within 180 days from the date on which the Applicant became aware of his right to launch it;

The notice in any event was not defective in that it provided all the information that was necessary to enable the Applicant party to engage the Department in the disposal process and if necessary, make objections, as it did.

[5] For ease of reference, I will refer to the parties as they are cited in this application.

[6] The material facts on which a decision on the matter should be based, can be derived from a summation of the affidavits filed by the parties. In this regard I believe that the starting point should be the background as laid down by the Third Respondent in its Answering Affidavit.

FACTUAL BACKGROUND

[7] The Third Respondent is the entity in whose benefit the decision impugned by the Applicant. The North West Provincial Government (“the Provincial Government”), through the Department of Public Works (“the Department”) has entered into an agreement with the Third Respondent to dispose of certain land which belongs to the Provincial Government in terms of the provisions of the Act. Its Answering Affidavit is deposed to by one of its directors and shareholder, Mr Dennis Tshwaro Modipa (“Modipa”). It is to this Affidavit that I will, in this judgment refer to, as the allegations relating to the history of the matter, are un-denied. I will also where necessary, refer to the uncontested facts as contained in the parties’ affidavits.

[8] Modipa alleges that around 2004, it acquired Erf 1172 in the centre of Mafikeng town with the intention of developing a regional shopping centre thereon. It was thereafter advised by specialist that in order to make the proposed development viable, it had to acquire a larger portion of land. The properties adjacent to that Erf were identified as solutions to its problem. It enquired at the Deeds of Office where it learnt that those properties which Modipa describes as being Erf 3370 and the Remainder of Erf 1410 were registered in the name of the Provincial Government.

[9] The first property, Erf 3276 had some sporting facilities which were utilized by the Mafikeng Preparatory, Primary and High Schools (“the Schools”) whilst the other property, Erf 1410, was a vacant land. Modipa states that the situation of the sporting facilities were not ideal to the Schools in that learners were required to cross the main vein of traffic flowing through the central business district of Mafikeng in order to access them from the Schools grounds.

[10] Besides, the facilities were in dire need of upgrading. About January 1984, Erf 1410 was subdivided by the Surveyor General. One portion was alienated to a private company. What remained was what is known the Remaining Extent of Erf 1410 which is adjacent to Erf 3370. That Erf was registered in the name of the Educational Trustees for the School District of Mafikeng.

[11] Erf 3370 on the other hand, does not exist as per the records of the Deeds Office. The fact of the matter is that this is in fact the property situated between the Remainder of Erf 1410 and Erf 1172 and is the one referred to as Erf 466, both in the record of the proceedings before the Department that were filed in this matter and also by the Applicant in its Founding Affidavit.

[12] He goes on to state that Erf 466 no longer exists as it was incorporated into Erf 3370 by consolidation approved by the Surveyor General. That consolidation involved also Erf 1419, Erf 1420 and 712 (“the properties”) which occurred about March 1993 which was however never formally registered. The Mafikeng Township Scheme does not refer to the individual erven but refers to their consolidated number which is Erf 3370. Together with Erf 1410, this property was transferred to the Educational Trust for the Schools District of Mafikeng for educational and sporting use.

[13] During the latter part of 2004, he commenced negotiations with the Principals of the three (3) schools that utilized the sporting facilities on Erf 3370 with a view to securing their consent to a barter.

[14] The proposal was that the Third Respondent would erect new and improved sporting facilities on a different property in the vicinity of the Schools, more suitably located on Erf 3370 in exchange for the Remaining Extent of Erf 1410 and Erf 3370.

[15] About 2005, an agreement in principle was struck with these three (3) Schools. A condition of that agreement was that the new sporting grounds must be completed and accepted by the Schools on an Erf which was nearer to them, prior to the Third Respondent taking possession of the facilities on Erf 3370. Thereafter he then made a presentation to the Provincial Government regarding the proposed barter.

[16] In point of time, and after considering further proposals from other entities, the Third Respondent’s proposal was approved by the Provincial Government, with conditions, which I believe are not material for this matter.

THE NOTICE

[17] On the 14 October 2005, a notice was published in The Mail newspaper by the Department. That notice, which is attacked by the Applicant on the basis that it does not comply with provisions of section 3 of the Act and was further not published in the Provincial Gazette, reads as follows:-

“NOTICE TO THE PUBLIC

Notice of disposal of State land is hereby given to the Public in terms of Section 3 (2) of North West Land Administration Act of 2001. Department of Public Works intends to dispose the following Erven which are registered under the Educational Trustees of the Mafikeng Primary and High Schools:-

Erf 1410, Nelson Mandela Drive, Mafikeng;

A portion of Erf 466 Nelson Mandela Drive, Mafikeng.

All interested parties are requested to make representations or objections, if any, against the stated intention of the Department

which must be submitted to the office stated hereunder within 21 days from the date of publication hereof.

Further details can be obtained from the office of the Director Property Management during normal office hours (8H00 – 16H30).

Old Parliament Building

Modiri Molema Road

Private Bag X2037

Mmabatho

2735

Contact: Ms Maserame Mogokonyane

018 387 2311”

THE APPLICANT’S OBJECTION AND THE DEPARTMENT’S RESPONSE

[18] The Applicant alleges that the disposal of the property in terms of the Act constitutes an administrative action which materially and adversely affects its rights or legitimate expectations and as such the process must be procedurally fair.

[19] It further alleges that the process followed by the Provincial Government in the disposal of the property was not only procedurally fatally flawed but was also procedurally unfair.

[20] On 2 November 2005, through its attorneys, it sent a letter to the Department in terms of which it placed the following on record:-

It endeavoured to obtain information as directed by the notice from a Miss Maserame Mogokonyane. The latter refused to furnish the information and explained that the plans (presumably to dispose of the land) were already at an advance stage;

It had information that the Department and a potential developer have been investigating and canvassing this disposition for a substantial period of time, to such an extent that interested entities have already acted as if such disposition was a foregone conclusion;

It was perturbed and upset about this information in that it had created the impression that the notice was merely paying lip service to the Department’s obligations of conducting a fair and transparent process in terms of the Constitution, PAJA and the Promotion of Access to Information Act of 2000;

“It then requested the following information and / or documents “in order to properly and fully consider the position and make representations and object”:

Copies of all procurement policies, policies in respect of disposition

of land, as well as guidelines and codes of the Department in this respect are required;

A map or other detail description of the portion of Erf 466, Nelson Mandela Drive that is involved in the intended disposition;

6. Copies of all valuations of the properties, reflecting their sizes and

how the valuations were arrived at;

Copies of all applications, submissions, presentations and reports in respect of the proposed disposition;

Copies of all minutes and/or resolutions and/or other documents and/or other records of proceedings reflecting the decision to dispose of the property and/or to place the advertisement;

Copies of all documents reflecting the reasons for the intended disposition;

10. Documents and/or information clearly indicating the intention and future plans in respect of the planned disposition;

11. All deeds of sales, heads of agreement, letters of understanding and/or other document reflecting the present and future intention of the Department and/or third parties in respect of the properties;

12. Is the department already committed to any third party in respect of the disposition and/or has any expectations been created and/or have negotiations and/or discussions taken place? If so, all documents relating to such dealings are required, and/or information reflecting the date, contents, identity or parties involved and outcome;

13. What is the intention of the Department in respect of the existing use of the properties for the school’s sporting activities, both in the short, middle and long term? All documents reflecting same are required;

14. On what basis was the property registered in name of the Educational Trustees of the schools and on what basis is the Department considering the disposition?

15. What is the present zoning of the properties? What is the future intention with the properties as far as zoning is concerned?

16. Full particulars of the subsequent procedure the Department intends following to dispose of the properties and/or determine the identity of the eventual purchaser are required, including an indication of all steps that will betaken to ensure equal opportunity;

17. Why the sudden need to dispose of educational land? Full particulars and all documents relating to this aspect are required, including documents reflecting the present and future need, supply, demand and planning for such governmental facilities; and

18. Full particulars of any interrelated deals and/or plans to facilitate the said disposition are required, including any sale of exchange agreements and/or understanding and/or registration.

Should you fail to furnish the said information and documents, this will be tantamount to a refusal of the right to make

representations and object. Without the said information, our client is unable to properly and fully contribute to the process.

20. Our client is namely considering objecting inter alia on the following grounds:-

There is no need to dispose of the properties in question.

The properties are presently being used for educational (sporting) purposes and there is no need to change this state of affairs.

There has been a lack of transparency in the run-up to the present objections.

There has been insufficient information and reasons furnished for such disposition;

The property is presently in beneficial use by a government institution, with no apparent reason to change this state of

affairs;

The present use has continued from time immemorial, without any objection or complaints. There is no need to change this longstanding practice.

Should the information be requested indicate a sale with the intention to use the property for business purpose, further wide-ranging grounds for objecting exist. In principle this would entail a governmental department actively competing and/or influencing market values and private enterprise, contrary to the aims and objections of a governmental department.

There has been no equal opportunity to all interested parties to object and/or give an input, prior to the advertisement.

There is especially no need fur further business areas, given the state of affairs of other business areas and other available vacant land for development.

he above grounds are not exhausted but can only be properly submitted and amplified after the required information has been furnished.

Our client request an opportunity to address the relevant committee and/or organ of state, prior to a decision being taken.

Your speedy reaction is awaited and it is requested that our client be afforded and opportunity, subsequent to the furnishing of the information, for amplifying and expanding the above objections. Otherwise put, that the deadline for objections and representations be extended and the present process in the interim suspended.

Should you fail to properly and fully respond to the above, we hold instructions to take all steps to ensure compliance with the above requirements, including an application for review and urgent interim relief, to suspend the present process.”

[21] On 2 December 2005, the Department, through its Acting Deputy Director General, responded to the Applicant’s letter. Instead of answering to the Applicant’s individual queries, it merely stated that the notice was executed in terms of the Act in order to solicit objections or representations regarding the disposal of the properties by a deed of exchange with an existing Stand Number 962 in Mafikeng. It was further stated that “the school is exchanging their property with a privately owned Erf No. 962 Mafikeng, which is more convenient for their use”.

[22] On 13 December 2005, the Applicant sent a further letter in which it was stated that the Department’s letter of the 2 December 2005 was completely inadequate as it failed to properly answer the questions put forward in its letter of 2 November 2005. The Applicant further stated that it was clear that the land that the Department was currently intended to dispose was never intended to be dealt with under the Act and that the process that the Department had followed did not comply with its own policies on these matters. The letter ended with a call to the Department to fully respond to the questions posed in the Applicant’s letter of the 2 November 2005 and further to

provide with a proper description of the property which is to be exchanged with Erf 1410 and Erf 466 “as there exist no Stand Number 962 in Mafikeng”. The Applicant’s rights were reserved.

[23] The Department responded on the 6 February 2006 and alleged that it was satisfied that the information contained in its letter of 2 December 2005 was adequate.

THE DECISION

[24] On 16 August 2005, representations were made by the Department’s officials to the Second Respondent to approve a deviation from the policy of disposing vacant sites and buildings through public tender and that the property be offered to the Third Respondent (or two other entities that made similar applications) in exchange of Erf 962 Mafikeng. The Second Respondent granted its approval and the Department then published the notice. The Applicant has not

challenged the process leading up to and that decision, as such, I deem it not necessary to refer to it in detail except to note that it was clearly based on rational grounds as it sought to benefit learners of the Schools, some of whom (if not all) must be under the age of 18 years.1

[25] On 6 May 2006, an agreement was signed between the Provincial Government, the Third Respondent and the Governing Body of the Mafikeng Preparatory Primary and High School. I do not believe it is necessary for me to set out the terms of this agreement except to refer to the fact that in order for the Third Respondent to lay its hands on Erf 1410 and a Portion of Erf 466, it had to relocate the sports fields at its own expense to Erf 9237 and to rebuild and provide all the facilities currently existing on Erf 466 to the satisfaction of the Department and the Schools’ Governing Body (“the SGB”).

[26] The Third Respondent was however not to demolish, change or damage any of the existing sporting facilities that were on portion of Erf 466 unless and until such time as the SGB has certified in writing that they are satisfied with their sporting amenities and facility that the Third Respondent had finally and fully completed on Erf 9237, the School’s benefit. The agreement described the properties that were involved in the exchange consolidation as:-

“REMAINING EXTENT OF ERF 466 MAFIKENG

situate in the Mafikeng Local Municipality,

Registration Division J.O. North West Province;

MEASURING 5,1000 (FIVE comma ONE NOUGHT NOUGHT NOUGHT) hectares HELD BY Deed of Transfer No. T1195/1952BP.

ERF 1410 MAFIKENG

situate in the Mafikeng Local Municipality,

Registration Division J.O, North West Province

MEASURING 5,7688 (FIVE comma SEVEN SIX EIGHT EIGHT) hectares HELD BY Deed of Transfer No. T353/1967BP.

The property of SPI involved in the exchange of the sports fields is-

26.4 ERF 9237 (A PORTION OF ERF 962) MAFIKENG situate in the Mafikeng Local Municipality,

Registration Division J.O. North West Province

MEASURING 5,0390 (FIVE comma NOUGHT THREE NINE NOUGHT) hectares

HELD BY Deed of Transfer still to be registered but extending as Diagram LG1721/2006, a copy of which is annexed hereto marked Annexure “D”.

The consolidated property of SPI for the purpose of the shopping mall will be –

ERF (new number) (A CONSOLIDATION OF REMAINING EXTENT OF 1410, REMAINING EXTENT OF ERF 466, PORTION 1 OF ERF 1172 AND THE REMAINING EXTENT OF ERF 1172) MAFIKENG situate in the Mafikeng Local Municipality, Registration Division JO, North West ProvinceMEASURING 12,6500 (TWELVE comma SIX FIVE NOUGHT NOUGHT) hectares HELD BY CERTIFICATE OF CONSOLIDATED TITLE still to be registered but extending as indicated by the figure ABCDLSMNVUTWPHJA on the Sketch Plan dated February 2006, a copy of which is annexed hereto marked Annexure “ “ …”

[27] However prior to this, about 27 September 2006, the Applicant became aware of the agreement between the Department relating to the disposal of the properties. In its letter, which is headed:-

“RE: DISPOSITION: ERF 1410 (REMAINING EXTENT) AND A PORTION OF ERF 466, NELSON MANDELA DRIVE, MAFIKENG”

It states that an application had been made for rezoning of amongst others, the Remainder of Erf 1410 Mafikeng by the Third Respondent. It referred to page 3 of that application for rezoning where it is allegedly stated that:-

“Southern Palace Investments 19 (Pty) Ltd has entered into a purchase agreement with the North West Department of Public Works to purchase Erf 3370 and the Remainder of Erf 1410, Mafikeng”.

[28] It is stated that it was clear that the Department was intended to continue with the process of disposing of the properties concerned despite its objections. It alleged that it has suffered prejudice and will suffer prejudice in the future because:-

“There has been no equal opportunity to all interested parties to object and/or give an input, prior to the advertisement.

There has been no proper consideration given to the objection raised by our client.

There has been a lack of transparency in the run up to the objection having been lodged.

The sale of the property is clearly intended for use for business purposes. The Department of Public Works has therefore, by disposing of the property to Southern Palace Investments 19 (Pty) Ltd, commenced to actively compete and/or influence market values and private enterprise, contrary to the aims and objections (sic) of the Department.

The above grounds are not exhaustive but can only be properly submitted and amplified after the required information has been furnished. For this reason we once again attach hereto, marked as Form A and in accordance with Section 18 of Act 2 of 2000, a request for access to the record of a public body (the Department of Public Works).”

[29] The letter further states that:-

“We are awaiting your reply to this request for information. Should you fail to provide us with the required information, our client shall proceed to take all steps necessary to ensure compliance with the above requirements. Furthermore, our client shall launch an application for review of the decision to dispose of the property concerned as soon as the information requested has been furnished. In the interim, you are requested to provide us with written confirmation that there shall not be proceeded with the process of disposal of the property concerned pending the finalization of the application for review. Should we not receive your confirmation within 7 days from date hereof, our client shall be forced to seek urgent interim relief to suspend the present process of disposal”.

[30 The Department responded to that letter, in a letter dated 31 October 2006 and alleged that the property had been disposed of in accordance with the provisions of the Act and that it had fully complied with its obligations relating to public participation by:-

“(i) giving adequate notice of the prescribed particulars of the intended disposition and the details of the related transaction to all interested parties;

(ii) following the prescribed procedures provided for in the Act; and

providing conditions relating to any conditions attached to the disposition.”

[31] It further confirmed that it had entered into the agreement alleged with the Third Respondent.

[32] On 14 November 2006, the Applicant challenged the contents of this letter and denied that the Department had complied with the provisions of the Act in that “… in fact the exact opposite constitutes the correct state of affairs pertaining to Department’s actions herein.

Not only was there no proper public participation procedure followed or allowed in this matter, but the advertisement that was placed in The Mail did not comply with the peremptory provisions of Section 3 (4)(a)(i) and (ii). In this regard we also reiterate the contents of our letter dated 2 November 2005 and more specifically Paragraph 4 to 15 thereof. You are specifically referred to the fact that our client’s numerous attempts to obtain information regarding the then proposed disposal, were refused, frustrated and rejected, contrary to the aim of the provisions of inter alia Section 3 of Act 4 of 2001.

Not only was this disposition of land fatally flawed regarding the procedure that was followed, but there also exists no substantive reason why the Department of Public Works should dispose of this property in the fashion which it apparently has.”

[33] Further allegations were made which I do not find necessary to repeat here especially for purposes of this judgment.

THE PRESENT PROCEEDINGS

[34] This current application was ultimately launched on 11 December 2007. As I have mentioned above, the Applicant’s main complaint is about the notice in that it does not comply with the provisions of the Act and the failure and / or refusal by the Second Respondent to furnish it with information it has being requesting since 2 November 2005.

[35] From the documents attached of record, the following is apparent, which I believe is also relevant in the process of adjudicating this matter:-

The Third Respondent entered into a purchase agreement with the Mafikeng Local Municipality for Erf 9237 (a Portion of Erf of 962) Mafikeng Extension 8 on 17 March 2005;

The said property was then registered in the Third Respondent’s name on 14 March 2007;

Construction of the sporting facilities on Erf 9237 commenced about October 2007;

The upgraded and relocated sport facilities were completed and handed over to the Department and the School Governing Body on or about 15 April 2008;

The Third Respondent incurred in excess of R20 million in acquiring Erf 9237 in relocating, upgrading and constructing sporting facilities on the property including the demolishing of the old ones on Erf 466.

PRELIMINARY ISSUE

[36] A few preliminary issues have to be decided. These are whether the non-joinder of the Schools, and the delay in launching this application contrary to the provisions of PAJA were fatal to the Applicant’s case and whether the Applicant should be granted condonation for the late filing of this application.

NON-JOINDER

[37] The Applicant criticized the manner in which the Respondents raised this point and further stated that in any event, the Schools had consented that the Provincial Government and or the Department could dispose of the land.2

[38] The agreement states that the Government of the North West Province, acting through PWD, is therefore entitled and empowered to deal with the property of the of the Educational Trustees. The agreement was signed by the Schools’ respective SGBs. It was further argued on behalf of the Applicant that I need not make any order in regard to the contract and that the parties must seek their respective common law civil remedies against each other arising from the non-implementation of the contract and the failure by the Second Respondent to transfer to the Third Respondent the properties as described in the contract.

[39] The Schools on the other hand, did not acquire any rights as a result of the decision taken. Accordingly, they are not necessary parties to this application to review and set aside the decision. “The decision which forms the subject of this application relates to the disposal of State owned land by the Second Respondent to the Third Respondent. Those are the parties that have a direct and substantial interest in this application, no one else”.

[40] The agreement, as I have indicated above, refers to the provisions of sections 54 and 55 of SASA and goes on to conclude that the Provincial Government was entitled and empowered to deal with the property of the Educational Trustees. (My emphasis) The Applicant relies on this assertion to claim that the Schools have no right to be joined in these proceedings.

[41] SASA provides at section 13(2) that:-

“…a public school which occupies immovable property owned by the State has the right, for the duration of the school’s existence, to occupy and use the immovable property for the benefit of the school for educational purposes at or in connection with the School.

The right referred to in subsection (2) may only be restricted –

by the Member of the Executive Council; and

if the immovable property is not utilized by the school in the interests of education.

The Member of the Executive Council may not act under subsection (3) unless he or she has –

informed the governing body of the school of his or her intention so to act and the reasons therefore;

granted the governing body of the school a reasonable opportunity to make representations to him or her in relation to such action;

duly considered any such representations received.

The right contemplated in subsection (2) is enforceable against any successor in title to the owner of the immovable property in question”.

[42] The title deed pertaining to the remaining portion of Erf 466 and Erf 1410 indicates that both Erven were registered in the names of the Educational Trustees of the Schools. These properties became the property of the Provincial Government by operation of sections 54 and 55 of SASA. The right of the Schools to continue to occupy and use the said properties was protected by section 52 which I have referred to above. It is an undeniable fact that although these properties were under utilized by the Schools mainly because of their state, the Schools’ rights to them were protected by section 52.

[43] Accordingly, in my view, the statement, reflected in the agreement, that the Provincial Government was entitled and empowered to deal with these properties was no more than the reference to sections 54 and 55 of SASA which did not however negate the provisions of section 52 of that Act. That is why the SGBs of the respective Schools are signatories to that agreement and had to give their assent to the product that will be developed by the Third Respondent on Erf 962 and that the sports ground used on Erf 466 be demolished and that Erf including Erf 1410 be transferred to the Third Respondent.

[44] In my view, a continued registration of the properties in the name of the Educational Trustees of the said Schools had the effect of perpetuating the real right that the Schools had over the said properties.3

[45] Besides the real right that the Schools had over the properties sought to be transferred, they also had a real interest in the property to which their sport grounds were to be transferred. Upon registration of those properties in the name of the Schools, their right to use those sporting facilities in terms of section 52 of SASA would for all intents and purposes be resuscitated or re-established. The agreement entails the demolishing of all sporting facilities on Erf 466 and the erection of new ones on Erf 962.

[46] In my view, an order setting aside the decision to dispose of the properties to the Third Respondent would clearly affect them. The Third Respondent would be under no obligation to pass transfer of the grounds on which the new sporting facilities were erected either the Provincial Government or to Schools and or to allow the Schools to use such sporting facilities. Such an order will directly affect their competing rights.4

[47] Resultantly, I conclude that the Schools were necessary parties in that they had substantial interest in the outcome of this litigation. The failure to cite them in these proceedings is tantamount to a non-joinder. The Applicants were forewarned by the Respondents but they chose to ignore them.

[48] Before I however make an order that I believe is suitable in this matter, I believe I should first deal with the next preliminary issue that was raised by the Respondents.

DELAY IN LAUNCHING THESE PROCEEDINGS

[49] Both Respondents, rely on the provisions of section 7(1) of PAJA which provides that such proceedings must be instituted without unreasonable delay and not later than 180 days after the date on which the grievant became aware of the administrative action and the reasons for it. The Third Respondent further argued that a critical difficulty caused by the Applicant’s delay in instituting these proceedings is that it is no longer possible to do so to unravel the disposition at this stage. It relies for that assertion on the fact of the new sports facilities have been constructed and the old ones have been demolished. The first phase of the shopping mall which is part of the overall plan of the Third Respondent on the entire properties is complete. The properties owned by the Provincial Government which are subject of the agreement, although they remain vacant, are being used as an integral part of the shopping mall in that they are used to gain access and egress from it and also to provide additional temporary parking facilities. The shopping complex itself has costs the Third Respondent in excess of R85 million whilst the construction of the new sports facilities and the demolishing of the old ones have caused them an additional R 20 million.

[50] The unravelling of the exchange, the argument went, would further result in the demise of an established shopping centre leaving the Third Respondent (with half completed shopping centre and) without proper access to the main arterial road in Mafikeng. This would not only adversely affect the Third Respondent but all the tenants of the shopping centre, their employees and the public at large.

[51 The Applicant argues that the setting aside of the decision would not affect the shopping centre. The Third Respondent would indeed be precluded from commencing with phase 2 of its plan but would still be able to use the affected State property for access and egress to the main arterial road in Mafikeng on the basis of the lease agreement that it currently enjoys with the Provincial Government. The decision will only affect the disposal of the properties in that the Third Respondent would not be able to obtain transfer of the aforesaid properties.

[52] Some of these contentions and the statutory provisions on which they are based require brief exposition.

[53] The Applicant concedes this application is brought in terms of the provisions of PAJA, accordingly, it is to those provisions that I will look for guidance.

[54] The starting point is in my view, the provisions of PAJA.5 The Applicant’s case is quintessentially covered by the provisions of PAJA, both with regard to the question of legality and the fairness of the procedure.

[55] Section 6 of PAJA provides that:-

“A Court or tribunal has the power to judicially review an administrative action if –

a) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with; …

b) the action itself –

(i) contravenes a law or is not authorized by the empowering provision; …

c) the action concerned consists of a failure to take a decision”.

[56] Section 7 however prescribes that such applications must be instituted without unreasonable delay and not later than 180 days after the date “… upon 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 been expected to have become aware of the action and the reasons”.

[57] The Applicant argues that it could not have known and could not reasonably have known, prior to the filing of the record on the 19 February 2008, that the administrative decision was in fact a decision to dispose of the remaining extent of Erf 1410, Erf 466, Erf 1419, Erf 1420 and Erf 712 and not just Erf 1410 and a portion of Erf 466 which the notice publicized.

[58] On the other hand, the Respondents contend that the Applicant was aware of the administrative action sought to be reviewed and set aside, the latest by the 27 September 2006, when the Applicant’s attorneys sent a letter to the Department drawing the attention to the fact they were aware that the Third Respondent had made application to the Mafikeng Municipality for the rezoning of amongst others, the remainder of Erf 1410. In a further letter dated the same day, the Applicant indicated that it had obtained a copy of the said application for rezoning which included a letter by the Department supporting the application.

[59] The rezoning application is an Annexure 2 to Modipa’s Answering Affidavit, “AA 5”. 6 In the introduction section, the Third Respondent indicated that the purpose of the application was for:-

“The amendment of the Mafikeng Town Planning Scheme, 1998, for the proposed rezoning of Erven 1172, 3370 and the remainder of Erf 1410 Mafikeng from “commercial and institutional to commercial with an annexure to also allow offices, residential buildings and workshops”.

[60] Paragraph 2.5 it mentions that the properties are held under Deed of Transfers T2750/2004, T352/1967, T1195/1952 and T353/1967. These registration numbers relate to Erf 1410, Erf 466, Erf 1419 and Erf 1420 respectively. Erf 710, I am informed was incorporated into Erf 3370 by a consolidation which was approved by the Surveyor General about March 1993.

[61] On behalf of the Third Respondent, it was argued that the Applicant’s contention that it did not know and could not reasonably have known prior to the filing of the Record that the impugned administrative decision was in fact a decision to dispose of more than Erf 1410 and Erf 466 which were reflected on the notice, was an act of disingenuity. It was said that the Applicant was able to or could have been able to determine that from the copy of the rezoning application which it obtained. Consequently, the argument went, that the Applicant ought to have launched these proceedings at the very latest during February 2007.

[62] In my view there is merit in the Respondents’ contention that the Applicant inordinately delayed in commencing these proceedings.

[63] I have indicated above that the cornerstone of its case is the notice that it published on the 14 October 2005. Applicant has alleged that it does not comply with the provisions of section 3 of the Act not only in terms of its contents but also due to the fact that it was not published in the Provincial Gazette. This in my view, was quite apparent to the Applicant at the time it instructed its attorneys to send the letter of 2 November 2005. In that letter, as indicated above, the Department was accused of merely paying lip service to its obligations of conducting a fair and transparent process in terms of the Constitution, PAJA and the Promotion of Access to Information Act. In addition, when it was allegedly fobbed off by the response it received from the Department, on the 2 December 2005, it accused the Department of not complying with the provisions of the Act and also its own policies in these matters.

[64] When the letter of 27 September 2006 was sent by its attorneys, not only was the Applicant aware what Erven the Department intended to dispose to the Third Respondent but also that the Department had not adequately dealt with issues it had raised in its previous letters. The letter of the 14 November 2006, put the matter beyond the pale. The Applicant disputed that the Department had complied with the provisions of the Act in disposing of the properties in that the advertisement that was placed in The Mail did not comply with the peremptory provisions of Section 3(4)(a)(i) and (ii). It further referred to its attempts to obtain information regarding the proposed disposals which it alleged were refused, frustrated and rejected and such contrary to the aims of the Act.

RECOURSE TO PAJA

[65] The Applicant had remedies in terms of PAJA to all the complaints that it levelled against the Department. The regulations published in terms of PAJA provides that any person whose rights are materially and adversely affected by an administrative action may:-

Request that administrator to furnish written reasons for the action;

And if he intends to institute an application for judicial review, he may request the administrator to furnish a list of relevant documents;7

The administrator must respond within 10 days with regard to the request for reasons. Relevant documents must be disclosed within 30 days of receipt of a request. If in both instances the administrator fails or refuses to cooperate with the request, the latter may apply to Court on notice of motion supported by affidavit for an appropriate order;8

A person who has not made a request for reasons or disclosure of relevant documents is not precluded from instituting an application for judicial review;9

[66] In my view, all these procedures are intended to ensure that the application for review is brought, ultimately within the time laid down by section 7 of PAJA unless the errant party is able to prove grounds of condonation in an application brought on notice of motion and supported by an affidavit. This presupposes a substantive application.

[67] Not only has the Applicant failed to launch such an application, its grounds, from what I heard in argument and read from its affidavit, are unconvincing. The letters that its attorneys sent to the Department on the 27 September 2006 and 14 November 2006, were very clear that it was aware that a wrong had been committed against it, and what it had to do in order to obtain a remedy. Its decision to wait until the 11 December 2007 was in my view, highly unreasonable.

[68] On the other hand, the Respondents implemented their agreement. A shopping centre was built for R85 million and new sporting facilities were erected at a cost of R 20 million. These facts cannot be divorced from the overall effect of the order that the Applicant seeks. So too is the ground which the Third Respondent hoped will be a natural extension of the project it had commenced. Although the point was not argued, I do however take cognizance of the fact that the stopping of the extension of the shopping centre would result in enormous financial

prejudice to the Third Respondent and its tenants. That has to be added into the mix.

[69] Accordingly, I hold that the delay in launching the proceeding has resulted in an administrative decision which would probably have been held invalid had the application been brought in time, been legalized.10

ORDER

[70] I therefore dismiss the application with costs and such costs to include the employment of two Counsel by all the Respondents.

_________________

M.G KHOZA

ACTING JUDGE OF HIGH COURT KHOZA

APPEARANCES

DATE OF HEARING : 24 MARCH 2010

DATE OF JUDGEMENT : 01 JULY 2010

COUNSEL FOR APPLICANT : ADV MARITZ

COUNSEL FOR RESPONDENTS : ADV PISTOR & ADV REYNEKE

ATTORNEYS FOR APPLICANT : NIENABER & WISSING ATTORNEYS

(Instructed by MEYER VAN SITTERT AND KROPMAN.)

ATTORNEYS FOR 1ST RESPONDENT : NKOMO & PARTNERS ATTORNEYS

ATTORNEYS FOR 2ND RESPONDENT : STATE ATTORNEY (ELGIN FORBES)

ATTORNEYS FOR 3RD RESPONDENT : SMIT STANTON INC

(Instructed by BLAKE BESTER INC)

1 Section 28 (2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. (3) In this section “child” means a person under the age of 18 years.

1 Section 28 (2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child.

(3) In this section “child” means a person under the age of 18 years.

2 The agreement at clause 11, refers to sections 54 and 55 of the South African Schools Act No. 84 of 1996. Section 54 provides – “transitional provisions relating to schools other than private school; any school which was established or was deemed to have been established in terms of any law governing school education in the Republic of South Africa and which existed immediately prior to the commencement of this Act, other than a private school referred to in Section 53 is deemed to be a public school The assets and liabilities which vested in a school contemplated in subsection (1) immediately prior to the commencement of this Act, vest in the public school in question …” Whilst on the other hand, section 55 provides: Any immovable property belonged to the state which was used by a school and not transferred or endorsed into the name of the school contemplated in subsection (1) remains the property of the state”.

2 The agreement at clause 11, refers to sections 54 and 55 of the South African Schools Act No. 84 of 1996. Section 54 provides – “transitional provisions relating to schools other than private school;

any school which was established or was deemed to have been established in terms of any law governing school education in the Republic of South Africa and which existed immediately prior to the commencement of this Act, other than a private school referred to in Section 53 is deemed to be a public school

The assets and liabilities which vested in a school contemplated in subsection (1) immediately prior to the commencement of this Act, vest in the public school in question …”

Whilst on the other hand, section 55 provides:

Any immovable property belonged to the state which was used by a school and not transferred or endorsed into the name of the school contemplated in subsection (1) remains the property of the state”.

3 See Moleko v Minister of Plural Relations and Development & Another 1979 (1) SA 125 (T) at paragraph 39.

4 Rosebank Mall (Pty) Ltd & Another v Cradock Heights (Pty) Ltd 2004 (2) SA 353 (W) at paragraph 40.

5 It defines an administrative action as any … any decision taken, or any failure to take a decision, by – (a) An organ state, when – exercising a power in terms of the Constitution or a Provincial Constitution; or

exercising a public power or performing a public function in terms of any legislation; … which adversely affects the rights of any person and which has a direct, external legal effect.

5 It defines an administrative action as any … any decision taken, or any failure to take a decision, by –

(a) An organ state, when –

exercising a power in terms of the Constitution or a Provincial Constitution; or

exercising a public power or performing a public function in terms of any legislation; … which adversely affects the rights of any person and which has a direct, external legal effect.

6 It is on page 534 of the Record – p.574.

7 Regulations 3 and 4 of Government Notice R1022, Government Gazette 23674 of 31 July 2004.

8 Regulations 6 and 7.

9 Regulation 8.

10 See Sebenza Kahle Trade CC v Emalahleni Local Municipal Council & Another [2003] 2 ALL SA 340 T at 348; See also Millennium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo Province & Others 2008 (2) SA 481 (SCA); See also unreported judgment, In re: Moseme Road Construction CC & Others v King Civil Engineering Contractors & Another, Case Number 385/2009, para. 21.