Mabelane v Dykema and Another (1054/2017) [2018] ZASCA 174; [2019] 1 All SA 316 (SCA) (3 December 2018)

Mabelane v Dykema and Another (1054/2017) [2018] ZASCA 174; [2019] 1 All SA 316 (SCA) (3 December 2018)

The majority held that an application is only 'pending' if the tribunal or authority still has the power to determine it. After the expiry of the suspension of constitutional invalidity on 17 June 2012, the development tribunal lost its authority to decide applications under the Development Facilitation Act. Therefore, any application not disposed of before that date ceased to be pending and could not be revived by s 60(2)(a) of SPLUMA. The purported approval of the respondent's application by the tribunal after the expiry date was invalid. The municipality was not obliged to process the respondent's application under SPLUMA, and the appeal was upheld. The dissenting judgment argued that...

Citation
[2018] ZASCA 174
Parties
Appellant: Arthur Pule Malebane; Respondent: Albert Dykema; Respondent: Bela-Bela Local Municipality
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 December 2018
Case Number
1054/2017
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld with costs; cross appeal dismissed with costs.
Judges
Wallis, Swain, Dambuza, Schippers, Mothle
Legal Topics
Development Facilitation Act, Spatial Planning and Land Use Management Act, Pending Applications, Constitutional Invalidity, Just Administrative Action
Land and Property Administrative Law Development Facilitation Act Spatial Planning and Land Use Management Act Pending Applications Constitutional Invalidity Just Administrative Action

Case Brief

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Parties

Arthur Pule Malebane

Appellant

Albert Dykema

Respondent

Bela-Bela Local Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether an application for land use change lodged under the Development Facilitation Act was pending before the development tribunal on 1 July 2015 for purposes of s 60(2)(a) of SPLUMA.
  2. 2 Whether the expiry of the suspension of constitutional invalidity rendered such applications lapsed or nullified.
  3. 3 Whether the municipality was obliged to process the respondent's application under SPLUMA.

Ratio Decidendi

The majority held that an application is only 'pending' if the tribunal or authority still has the power to determine it. After the expiry of the suspension of constitutional invalidity on 17 June 2012, the development tribunal lost its authority to decide applications under the Development Facilitation Act. Therefore, any application not disposed of before that date ceased to be pending and could not be revived by s 60(2)(a) of SPLUMA. The purported approval of the respondent's application by the tribunal after the expiry date was invalid. The municipality was not obliged to process the respondent's application under SPLUMA, and the appeal was upheld. The dissenting judgment argued that...

Court Disposition

Appeal upheld with costs; cross appeal dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the high court is set aside and substituted with: 'The application is dismissed with costs.'