Van Der Heever v Matjhabeng Local Municipality (4194/2022) [2023] ZAFSHC 276 (14 July 2023)

Van Der Heever v Matjhabeng Local Municipality (4194/2022) [2023] ZAFSHC 276 (14 July 2023)

The court found that the applicant's request for the respondent to file the record of the decision was not supported by law, as the respondent credibly asserted that no such record exists due to the council's lack of consideration of the agreement. The application was not one to compel discovery, and even if it were, discovery in motion proceedings is only granted in exceptional circumstances and typically after all affidavits have been filed. Regulation 2(3) of the Administrative Review Rules under PAJA does not apply to self-review applications by organs of state. The absence of a record is not a prerequisite for review proceedings, and the court will not compel production of...

Citation
[2023] ZAFSHC 276
Parties
Applicant: Johannes Hermanus van der Heever; Respondent: Matjhabeng Local Municipality
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
14 July 2023
Case Number
4194/2022
Procedural Posture
Review Application / Application to Compel Filing of Record Prior to Main Review
Outcome
Application dismissed with costs. Applicant granted 20 days to file opposing affidavit in the main application.
Judges
C Reinders
Legal Topics
Self Review, Discovery in Motion Proceedings, Rule 53, Rule 6, Promotion of Administrative Justice Act
Administrative Law Civil Procedure Self Review Discovery in Motion Proceedings Rule 53 Rule 6 Promotion of Administrative Justice Act

Case Brief

Summary, issues, holding and outcome

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Parties

Johannes Hermanus van der Heever

Applicant

Matjhabeng Local Municipality

Respondent

Procedural Posture

Review Application / Application to Compel Filing of Record Prior to Main Review

Legal Issues

  1. 1 Whether the respondent municipality must be compelled to file the record of the decision it seeks to have reviewed and set aside.
  2. 2 Whether the applicant is entitled to discovery or production of documents prior to filing an answering affidavit in the main application.
  3. 3 Whether Regulation 2(3) of the Administrative Review Rules under PAJA applies to self-review applications by organs of state.

Ratio Decidendi

The court found that the applicant's request for the respondent to file the record of the decision was not supported by law, as the respondent credibly asserted that no such record exists due to the council's lack of consideration of the agreement. The application was not one to compel discovery, and even if it were, discovery in motion proceedings is only granted in exceptional circumstances and typically after all affidavits have been filed. Regulation 2(3) of the Administrative Review Rules under PAJA does not apply to self-review applications by organs of state. The absence of a record is not a prerequisite for review proceedings, and the court will not compel production of...

Court Disposition

Application dismissed with costs. Applicant granted 20 days to file opposing affidavit in the main application.

Orders

  • The application is dismissed with costs.
  • Applicant is granted 20 days from date of this order to file his opposing affidavit (if any) in the main application under case number 4194/2022.