SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE  HIGH COURT  OF  SOUTH AFRICA

{GAUTENG  DIVISION,  PRETORIA}

Case Number: 2 7542 / 2013
DATE:5 MAY 2016

In the  matter between:

ACORNHOEK  PLAZA SHARE  BLOCK  (PTY ) LTD	APPLICANT

And

THE MEC: DEPARTMENT AGRICULTURE, RURAL DEVELOPMENT & LAND ADMINISTRATION, MPUMALANGA  PROVINCIAL GOVERNMENT
THE  CHAIRPERSON:

THE MPUMALANGA DEVELOPMENT TRIBUNAL THE  MUNICIPAL MANAGER:
BUSHBUCKRIDGE LOCAL MUNICIPALITY MAMOKHUTHU GROUP DEVELOPMENT CC THE MINISTER  OF  LAND AFFAIRS

1

T

st  RESPONDENT

2nd RESPONDENT

3rd RESPONDENT

4th  RESPONDENT

5th  RESPONDENT

NAD PROPERTY INCOME FUND (PTY) LTD THE  REGISTRAR  OF DEEDS
THE  SURVEYOR GENERAL

6th RESPONDENT

7th RESPONDENT

8th  RESPONDENT

JUDGMENT

Fabricius J,

1.

Before me  is a  review  application  the  record of which,  including all relevant   affidavits

and  annexures,   consists  of  some   3000   pages.  The  proceedings   before  me  were

confined  to  argument  relating to two  points  in limine which  I need to  decide.  The first

one  relates  to  the  quest_ion  whether  or  not  the  Applicant  has  locus  standi in these

proceedings,   and   the   second   one   relates   to   the   question   whether   or   not the

proceedings  were  brought  within  a  reasonable  time  having  regard  to  the provisions

referred  to  as  "PAJA".  The  relevant  review  application  was  lodged  on  9  May 2013

in this  Court and the  prayers  read as follows:  "

1.    That  the  decision  of  the  Third  Respondent  dated  May  2012,  referred  to   in

Annexure   A   hereto,  and  by  virtue   of  which  the   utilization  of  the  property

known  as [ Portion ..  of  the  Farm  Greenvalley  2..,  Registration  Division  KU],

in  terms  of  an  existing  Land  Availability  Agreement  or  otherwise,  has   been

changed  from  a  _middle  income  housing  project  consisting  of  53 7  erven to

inter alia that  of  a  regional  Shopping  Centre,  be reviewed  and set aside.

2.	That    any  subsequent	amendment	of   the	Land   Availability	Agreement

concluded  between  the  Third  Respondent  and  the  Fourth  Respondent which

Agreement    is   dated   8   June    2009,   and   which    is   attached   hereto   as

Annexure  B, in accordance with the decision  mentioned  in Prayer  1 hereof,

be declared  null and  void with  no further  force  or effect.

3.	That the decision of the Second Respondent, by way of which the objection

received  from  Umsebe  Development  Planners,  dated  2 3  April  2012, against

Section 3 5 read with Regulation 3 2  ( 3 ) (a) of the Development  Facilitation

Act  19 9 5, and which objection is annexed hereto as Annexure C, has  been

disqualified as a valid and timeous objection and such Application  has   been

processed and approved on an unopposed basis, be reviewed and set aside.

4.	That the decision of the Second Respondent dated 11 May 2012 and

attached  hereto  as  Annexure   D,  by  virtue  of  which  the  Application   for

amendment  referred to in prayer 3, was accepted as an "amendment" of   an

existing  decision,  was   processed  and  was,   in  terms  of  such   decision,

approved  in terms  of the statutory  provisions  mentioned, subject to  certain

conditions, be reviewed and set aside.

5.	That any subsequent actions, decisions and/ or authorizations of the First

Respondent, Second Respondent and Third Respondent, by virtue of   which

any  of the decisions  referred to  in Prayers  1, 3  and 4 hereof,  have    been

given	effect	or	have	been	executed	in	the	form	of	publications,

proclamations, approval of site development plans or building plans in terms

prevailing Town  Planning Scheme  or any  alternative  statutory  provision, be

declared null and void with no further force or  effect."

2.

The Annexure A referred to in prayer 1 in turn reads as  follows:

"The  above-mentioned	matter   which  was	presented	before  the	Mpumalanga

Development Tribunal on 2 6 March 2012 refers.

In response to your letter dated 2 6 March 2012 with regard to the  above-mentioned

application,  the  Bushbuckridge  Local  Municipality  wishes  to  inform  you  that  the

proposed development  has been presented to the Portfolio Committee for   Finance,

Supply	Chain,	Economic	Development,	Planning  and	Environment	and  was

supported by the Committee on 24 April  2012.

The  Bushbuckridge  Municipal  Council would  not be able to sit  prior to the  Hearing

scheduled  for  21 May  2012.  We therefore  request that  the  Development Tribunal

consider the application as submitted and that the Municipal Council Resolution will

We trust that the above is in order and the points raised will be attended to. Should

you require any further information please do not hesitate to contact our office."

I may just  add at this stage that  having regard to the content of this annexure,  it   is

not exactly clear what "decision of the Third Respondent" the Applicant  has in   mind

in the context of Prayer 1.

Prayer  2  refers to  Annexure  B. This  agreement  is dated  8  June  2009.  It is clear

from  the  terms  of  the  agreement  that  it  was  intended  to  develop  the   relevant

property and to provide for  residential  erven.  I may also add at this stage that  it   is

certainly   not  clear   at  all  from  the  terms   of  Prayer   2   what   "any  subsequent

amendment" to this agreement the Applicant has or had in mind. In the same way,   it

is	not	clear	from	Prayer	5   which	"subsequent	actions,	decisions	and/ or

authorizations" are referred to.

3.

The Sixth, Seventh and Eighth Respondents were joined later in the proceedings.

granted by way of an order dated 17 October  2013. The Supreme Court of    Appeal

refused leave to appeal against the order  made, clearly on the basis that  it was    of

an interim nature. That is also the reason why I do not regard the previous interim

order granted as being conclusive  in these  proceedings  on the  basis that the  brief

argument relating to res iudicata has no merit at  all.

4.

On 31 March 2014, Applicant filed a lengthy Supplementary affidavit which  amongst

others dealt with the joinder of the Sixth, Seventh and Eighth Respondents and  also

referred to an amendment of the original relief sought in the Notice of Motion. It is

necessary to refer to the relief sought in terms thereof and it is as follows:

1.	''That	the	Land	Availability	Agreement	concluded	between	the	Third

Respondent  and  the  Fourth  Respondent  by  virtue  of  Resolution  number

30/ 2007 dated  2 2  March  2007  page 490 and  613 of the record and    any

subsequent amendment thereof including the document dated 8 June   2009,

property  known  as  [Portion ..  of  the  Farm  Greenvalley  2..],   Registration

Division KU, be declared null and void, and with no force or  effect.

2.	That the Engineering Services Agreement concluded between the Third

Respondent  and the  Fourth  Respondent  on or  about  2 3  August  2000  in

respect of the development of the property mentioned in paragraph  1   above

and which Agreement  is to be found on pages  145 up to  154 of the  Record

be declared null and void and with no force or effect.

3.	That the "Agreement" concluded between the Fourth Respondent and the

Sixth Respondent in respect of a portion of approximately  15 hectares of  the

property  referred to in paragraph  1 above apparently  on or about July  2011

and of which  an unsigned copy is attached as pages  6 3 3  up to  6 50 of the

Record, be declared null and void and with no force or effect.

4.	That the transfer of the portion of the property mentioned in paragraph 3

above from the Third respondent to the Sixth Respondent by virtue of either

of the  Agreements  referred to  in paragraphs  1 and  3  above,  or  any other

property,  be declared  null and void  and with  no further  force or effect.

5.	That the Seventh Respondent be directed to reverse the transfer of the

property   referred  to   in  paragraph   3   above,   from   the   name  of  the Sixth

Respondent,  in  terms  of  the  provisions  of  the  Deeds  Registries  Act  47 of

19 3 7  to   the   effect   that   ownership   thereof   shall   re-vest   in   the   Third

Respondent.

6.	That the decisions of the Third Respondent dated 24 April 2012 and 5 July

2012 respectively to be found on pages 46 7 - 471 and page 47 6 of  the

Record, and confirmed to the Second  Respondent  by way  of   correspondence

to  be found  on  pages  6 6 2  and  6 6 7  of the  Record,  by virtue  of which  the

utilization   of   the   property   referred   to   in  paragraph   1   hereof,   has been

changed  from  a  middle  income  housing  project  consisting  of  53 7  erven  to

inter alia that  of  predominantly  a  regional  Shopping  Centre,  be reviewed and

set aside.

7.  That the decision  of the  Second  Respondent dated  11 May  2012, to  be found

Amendment  lodged by the Fourth Respondent in terms of Section  3 5    read

with  Regulation   3 2   ( 3)   (a)  or  any  other  provision  of  the Development

Facilitation  Act  19 9 5,  was  accepted  as  an  "amendment"  of  an  existing

decision,  was  processed  and  approved,  subject  to  certain  conditions,  be

reviewed and set aside.

8.	That the approval of the conditions of Approval of the land development area

known  as [ Greenvalley   Extention  .. ] and  the  Development   Plans  for  the

approved	and	amended	land	development	application	referred	to	in

paragraph   7   above  and  which   land  development   areas  are  known   as

[Greenvalley  Ext ..and Greenvalley  Ext ..]  by the Second Respondent, on  19

April  2013 , in terms  of the  invalid  provisions  of  Chapters  V and VI  of  the

Development  Facilitation Act  19 9 5 and which approvals are to be found on

pages  728  up to  730  and  73 3  up to  740 of the  Record,  be reviewed and

set aside.

9.	That the subsequent approval of the General Plans of the land development
8.	

June  2013,  which  approvals  are  reflected  on  pages  771  up  to  776  of    the

Record   be  reviewed  and   set   aside  and  that  the   Eighth  Respondent     be

directed  to  amend  its Records  accordingly  in terms  of the  Land Survey  Act 8

of 19 9 7.

10.	That the Resolution of the Third Respondent dated 2 9 May 2013 which is to

be  found  on  page  744  up  to  754  of  the  Record  and  which  Resolution was

apparently   relied   upon   by  the  Third   respondent   to   effect  transfer   of  the

property   mentioned   in   paragraph   3   above   to   the   sixth   Respondent,  be

reviewed  and  set aside.

11.	That the Resolution of the Third respondent dated 10 July 2013 and which is

to   be  found   on   page   7 6 3   of  the   Record   by  virtue   of  which   the Third

Respondent   has   in   terms   of    Section	7	( 6 )   of   the   National   Building

Regulations  and  Building  Standards  Act  19 77  approved  the commencement

of  construction  activities  on the  property  mentioned  in  paragraph  3  above by

the  Sixth  Respondent  be reviewed and set  aside.

Respondent,  Second  Respondent and Third Respondent, by virtue of  which

any of the agreements or decisions referred to in paragraphs 1, 2, 3, 6, 7 ,

8, 9, 10 and 11 hereof, have been given effect to or have been executed in

the form  of  publications,  proclamations,  approval  of site development plans

or building plans in terms of the National Building Regulations and Building

Standards  Act  19 77  or  in terms  of  any  alternative  statutory  provision, be

declared  null and void with no further force or effect." This page is the   same

as  Prayer  5  in  the  original  Notice  of  Motion  and  during  argument  it was

abandoned by Applicant' s Counsel.

5.

Applicant's  locus standi:

In the Founding Affidavit Applicant  said that it "is the legal possessor, occupant   and

owner of a property known as a portion of the Farm Greenvalley". This property   was

in  extent  some  7.3  hectares,  located  adjacent  to  the  R40  main  access  road to

2 9 806m2  has been developed  in five  phases over the  last  20 years,  and  which

shopping centre is known as the Acorn Plaza. This will be referred to as  "Applicant's

development". Applicant said further in the context of locus standi that it "has  vested

rights  and  interests  in immovable  property,  is an occupant  of such  property, pays

assessment  rates  in respect  of  such  property  and therefore  has locus  standi   to

approach this Court. The relevant  relief claimed in the  Notice of Motion pertains    to

the approval of land use rights on the property adjacent to the same road within    the

same  catchment  area  of  applicant' s  development,   serving  the  same  threshold

population  intended  on  land  approximately  600m  from  Applicant's development".

The Fifth Respondent was cited due to him being the current registered owner of the

subject property which "apparently is to be made available to the Third   Respondent

for development purposes".

Under  the  heading  "ESSENCE  OF  THE  APPLICATION",  Applicant  says  that  it

approaches  this  Court  in accordance  with  the provisions  of  PAJA  to  procure  an

order by virtue of which the decisions of the Second and Third Respondents by   way

approved,  are reviewed and set aside. Applicant  continues to say in the    Founding

Affidavit that the basis for such an approach to the Court stems from the fact that:  "

8.2	.1	The land use change process followed by the Fourth Respondent, and

allowed  by the Second  Respondent,  in order to  procure  such approved

commercial land uses, is inappropriate and irregular in the circumstances

and is not allowed by the authorising legislation, i. e. the  DFA.

8.2.2	The land use change process followed by the Fourth Respondent is not

authorised  an.d the Application  for  amendment  lodged does  not comply

with  the  mandatory  and  material  procedures  and  requirements  of the

authorising legislation, i. e. the DFA.

8.2.3	The administrative procedures followed by the Second Respondent in its

acceptance, processing and approval of the Amendment Application were

procedurally unfair.

8.2.4	The Second Respondent was unduly influenced or on an unwarranted

basis  dictated  to,  which  facts  prevented  the  Second  Respondent    to

obligations  imposed  upon  it in terms  of the  authorising  legislation, and

which fact renders the decision to approve of the Amendment Application

reviewable.

8.2.5	The Second Respondent was, due to an obvious lack of sufficient

information which stems from non-compliance by the Fourth Respondent,

with and neglect by the Second Respondent to enforce the provisions   of

the DFA, not in a position to duly apply its mind to the correct facts,    and

which situation, from a Town Planning perspective, renders the   decision

of the  Second  Respondent,  in any  language,  arbitrary  and capricious,

and per se justifies the review and the setting aside thereof.

8.2.6	The decision of the Second Respondent, in respect of the Amendment

Application, with due consideration of the circumstances which  prevailed

during  processing  of the Amendment  Application,  and the   information

available to the Second Respondent, at the time, is from a town Planning

point of view so unreasonable that no responsible and competent    Town

decision.

8.2.7	The decision of the Third Respondent to, on request of the Fourth

Respondent,  on  an  unsubstantiated  basis,  amend  the  intended utilisation

of   the   subject   property   from   middle   socio    economic	residential   to

"business",  is· in the  circumstances  not  only  arbitrary  and  capricious, but

also   unauthorised,   not  sanctioned   in  terms   of   the   duly   signed  Land

Availability  Agreement,  and  same,  similar  to  the  decisions  of the Second

Respondent,  are  unreasonable,  since  there  is  no  rationale  between  the

facts   available  to  the  Second  and  Third  Respondents  at  the  time   and

their   unconditional   and   irresponsible   support   for   a   regional shopping

centre on the  subject  property."

6.

In the  Supplementary  Founding Affidavit  dated  31 March  2014, the  deponent  to   the

Founding  Affidavit,  in  the  context  of  Prayer   1  of  the  Amended   Notice  of   Motion,

Prayers  3, 4 and  10 of the Amended  Notice of  Motion Applicant  says that  it relies

on the provisions of s. 6 of PAJA. The same section applies to Prayer 3, according

to Applicant.  As far as Prayer  10 is concerned, Applicant  in the Founding   Affidavit

relies  on the  provisions  of  s.  6  ( 2)  (e)  (i) ,  (v), and  6  ( 2 )  (f)  (ii).  In respect of

Prayer 7 , s.  6  ( 2 )  (a) and  (e) and  (f) of  PAJA are relied upon. Furthermore,   the

approval of the Amendment Application stood to be reviewed and set aside in  terms

of  s.  6   ( 2 )   (a)   (i),  6   ( 2 )  (e)   (i)  and  6   ( 2)   (f)  (i)  of  PAJA.   The   Second

Respondent's decision by virtue of which the said Amendment Application had  been

approved,  was  reviewable  in  terms  of  s.  6  ( 2 )  (a)  (iii)  of  PAJA.  The  relevant

approvals relating to Prayers 8 and 9 stood in turn to be reviewed and set aside in

terms of s. 6  ( 2 ) (a)  (i), 6 ( 2 )  (f) (i) and 6  ( 2 ) (i) of   PAJA.

7.

It is thus abundantly clear that Applicant relies on the provisions of PAJA - and in

particular on a number of subsections  of s. 6 thereof. Section  6  ( 1 ) is to the  effect

administrative  action.  "Administrative  action"  has  been  defined  in s.  1 of this  Act and

it means any  decision  taken  or any failure  to take a  decision  which  adversely  affects

the   rights  of  any   person  and  which   has  a   direct,   external   legal  effect.   It  does

however  not  include  the  executive  powers  or  functions  of  a  municipal  council.     In

Grey's  Marine  Houtbay  {Ply}  Ltd  &  Others  v  Minister  of  Public  Works & Others

2005  (6)  SA   183  SCA,   Nugent   JA,   in  the   context   of   this   definition   said that

"administrative  action  is  action  that  has  a  capacity  to  effect  legal  rights".  It  is  also

clear  that  administrative  action  must  impact  directly  and  immediately  on individuals.

Whether  a  particular  conduct  constitutes  administrative  action  depends  primarily   on

the  nature  of  the  power  that  is  being exercised,  rather  than  upon the  identity  of the

person  who  does  so.  An  administrative   action  does  not  extend  to  the  exercise  of

legislative  powers  by a  deliberative  elected  legislative  body,  nor to the  formulation of

policy   or  the  formulation   of   legislation   by  the  executive.   Administrative   action  is

rather,  in  general  terms,  the  conduct  of  the  bureaucracy  in  carrying  out  the    daily

functions  of  the  State  which  necessarily  involves  the  application  policy,  usually after

group  of  individuals.  There  is of course  also a difference  between the formulation    of

a  policy  and  its  execution.  It  is therefore  abundantly  clear  that  before Applicant can

rely on the  provisions  of  PAJA,  it  must  place  itself within  the  ambit  of the  definition

of  "administrative  action",  and  must  show  that  any  particular  relevant  decision   has

adversely  affected  its rights.

8.

In  the   Answering   Affidavit   of   the   Fourth  and   Sixth   Respondents,   the deponent

thereto,  D.  M.  Dry, who  was  a  legal advisor  to the  Fourth and  Sixth  Respondents at

relevant  times,  and  in the  context  of  Applicant's  allegations  relating  to  locus  standi,

states  that  it is significant  that  no documents  were  attached to either the Founding  or

the	Supplementary	Affidavits	confirming	Applicant's	alleged	"ownership",

"possession" or "right" to occupy, or any form of zoning or land use rights that would

entitle  the  Applicant  to  carry  on the  business  retail  shopping  centre  on the  property

concerned.  He also disputes the  size of  Applicant's  development  and whether  or   not

the  outcome  of  the  litigation  is of  a  Competition  Law  nature.  The  whole application

was  based on this  aspect  and  it should  be dismissed  for that  reason  inasmuch     as

the  Applicant  would  be  in wrong  forum.  Because  of  the  Applicant's  failure  to attach

documentation  to  the  Founding  Affidavits  relating  to  that  legal  basis  of  Applicant's

alleged   ownership,   or   the   right   to   occupy,   it  was   difficult   to   deal meaningfully

therewith   in   an   answering   affidavit.   However,   he   then   referred   to    Applicant's

Replying  Affidavit  in the  urgent  application  dated  8  August  2013  where  it was  then

said  that  the  Applicant  had  a  49  year  occupation  right  in  terms  of  a  duly   signed

lease   agreement.   It  was   also   pointed   out   that   in   such   Replying   Affidavit that

Applicant  changed  its  stance  relating  to  the  alleged  ownership  of  the  land  without

any  explanation  or apology  for  having stated  a wrong premise.

It is  not  necessary  to  deal  with  all  these  detailed  allegations  and  denials inasmuch

as  it became clear  during  argument that:

8.1

Applicant  is  not the owner  of the  relevant development;

8.2

No  long  term   lease  or  any  other  right  in  favour   of  the  Applicant  was    registered

against  the title  deed  of this  development  or property;

8.3

The Applicant  is not a  rate-payer  in that  area  inasmuch  as  it is not the owner  of   the

property;

8.4

Applicant  only  occupies  the  property  in  terms  of  a  so-called  "PTO"  (Permission  To

Occupy)  the  terms  of  which  can  be  found  on  the  following   basis:  On  31  January

2014,   the   Department   of   Rural   Development   and   Land   Reform,   wrote   to  the

Municipal   Manager   of  the   Bushbuckridge   Local   Municipality   and  stated amongst

others  that  the  Acorn   Plaza   Share   Block   (Pty)   Ltd  was  the   holder  of  a      valid

Permission   To   Occupy   for   the   property   on   which   the   Plaza   was    developed,

measuring  7.3  hectares.  The  application  for  the  formalisation  of  a  long  term  lease

between   the   Department   and   the   Applicant   was   at   an   advanced   stage.   The

Department  then  gave consent to the  Municipality  for  the  issuing of the   occupational

certificate for the  said extension  to the  property  occupied  by Applicant,  as  long as

the building of the said extension was in line with the site development plan as well

as the building plans as approved by the Bushbuckridge Local Municipality.

It is therefore clear that the allegations  made by Applicant  in the Founding   Affidavit

were substantially  not true in the context of its locus standi. At best for the   Applicant

therefore  it is in  possession  of  a valid  Permission To  Occupy  the  said   premises

(though subject  to  conditions  which  had  not yet  been  met).  Locus  standi must of

course not be looked at in isolation, but must be seen in the light of the relief   sought

against the background of the relevant provisions of  PAJA.

9.

I must add that the Answering Affidavit of the Fourth and Sixth Respondents  dispute

that Applicant  is the holder of a valid Permission To Occupy.  It therefore stated  that

the  Applicant   had  no  lawful  or  legal  interest  in  the  relief  claimed.  The   review

application was merely an attempt to stifle or eliminate competition.

10.

In Third  Respondent's  Answering  Affidavit,  the  Municipal  Manager  of Bushbuckridge

Local  Municipality  sets  out the  long history  of the  relevant  property.  I deem this to be

of  relevance  in  considering  whether  or  not  the  Applicant  has  any  locus  standi    in

these   proceedings   in  the  context   of  the   relevant   decisions   taken  either   by  the

Limpopo  Government,  the  relevant  tribal  authority,  the  National  Government  or  the

present Third  Respondent.  It is clear from this affidavit  that the  history goes  back    as

far   as   19 9 8   at  the  very   least.  Various   decisions   were   taken  thereafter  which

ultimately   led  to  a   decision   to  consolidate   certain  of  the   relevant  erven   and  to

provide for  a  regional shopping  centre and a filling  station.  About  75%  of the  area of

the   property   would   still   be   set   aside   for   the   development   of   township erven.

Municipal  Council  Resotutions  and  Decisions  were  taken  on  the  basis  that     there

existed  limited retail facilities  in the  Bushbuckridge  region.  It was  also  stated that the

local  municipality   had  a   duty  to  create  an   investor-friendly   environment.   It   also

stated  that  a  successful   review  of  the   Mpumalanga   Development  Tribunal   would

underlying  legislation  (parts  of  the  Development  Facilitation  Act  67 of  199S)  had

been  struck  down  by  the  Constitutional  Court.  A  successful  review  would therefore

essentially   amount   to   the   denial   of   land   use   rights,   without   further  recourse.

Regarding  Prayer  1  of  the  Notice  of  Motion  read  with  Annexure  A  thereto,    Third

Respondent  said that  Annexure  A  does  not contain  a  "decision"  within  the meaning

of  the  term  PAJA.  It  also  does  not  reflect  that  it  is  a  decision  which  has  a direct

external  effect  on the Applicant.  It also emphasizes  that  the  municipality  supports the

establishment  of a  regional shopping  centre  in addition  to the shopping  centre of  the

Applicant.   It  however  denied  that  its  support  for  such  development   constitutes    a

"decision" which  is reviewable  in terms  of PAJA.

11.

In  my  view  it  is  clear  from  both  Notices  of  Motion  that  the  application  in essence

revolves  around  the  relevant  Land  Availability   Agreement   and  its  amendment,   to

allow  for   parts  of  the   particular   property   being  developed   as  a  shopping  centre

decisions  to  develop  a  certain   property  for  the  benefit  of  the  community   and    to

attract  financial  investment  cannot,  and  should  not,  be  reviewed  on  the  basis    the

Applicant  contends  for,  relying  on  vague  allegations  of  a  Competition   Law  nature.

Policy  decisions  of  this  nature  lie  within  the  heartland  of  the  exercise  of executive

authority.  The  provisions·of  PAJA generally  do not allow a Court to  intervene  in  such

decisions,  and  particularly  not on the  present facts.

See:   Tshwane  City   v  Nambiti   Technologies  2016  (2)   SA  494  SCA  at  par.   43,

although  those  views  were   expressed   in  a  different  context.  Also,   an     executive

decision  of a  municipality  is not 'administrative  action'  as defined  in PAJA.   Applicant

herein  has in my view  not established  the  necessary  locus standi inasmuch  as  it  has

not  shown  that  any  decision  of  an  administrative  nature  has  adversely  affected  its

rights.  I  may  also  add,  as  a  final  comment  on  this  topic,  that  I  could  not  find any

decision   by  the  Third  Respondent  to  the  effect  that  the  utilisation  of  the    relevant

property  has changed from  a  middle income  housing  project consisting  of  53 7 erven

to  inter  alia  that  of  "predominantly  regional  Shopping  Centre",  as  Prayer   6   would

Respondents  that  about  7 5 %  of  the  erven  have  been  retained  for  a   housing

development,  and this was  not disputed  in reply, nor could it be. A  brief history   of

the saga  is set out in the Agenda  of a meeting of the Municipality  held on  24  April

2012. This is the "decision" Applicant  relies on in respect of Prayer  6. This  Agenda

is 'titled' "Amendment Of An Approved  DFA Application To Allow  For  Development

Of A Regional Shopping Centre In Greenvalley". Apart from the point raised that this

does not reflect a "decision" in terms of PAJA, it provides significant information  also

relevant to the consideration of whether or not a condonation application should    be

granted. (If such were properly before me). The introduction provides a good  factual

background,  which   contradicts  Applicant's	allegation   that   only a	(competing)

Regional Shopping Centre is envisaged,  unlawfully as it states. It reads as   follows:

"The  Bushbuckridge  Local Municipality  entered into a  Land Availability Agreement

with Mamokohutu Development for the Establishment of a township on [Portion .. of

the Farm Greenvalley  2..  KU.] An application for the development  Tribunal on   19

January  2001. The  General  Plan for the township  was  approved  by the  Surveyor

Mamokhutu  Developers,  in  an  endeavour  to  implement  and  finalize  the project,

negotiated  agreements  with  potential  development  specialist.  The  developers    have

agreed to finalise  the  project  subject to  a  condition  that  a  Regional Shopping Centre

be  developed  first  at  the  site  to  ensure  that  the  proposed  development  of   Middle

income housing is successful.

It is therefore  the  request  of  Mamokhutu  Development  to  amend  the  approved DFA

application to allow for  the  proposed  Regional  Shopping  Centre". Also,  as far  as  the

"Regional  Implications"  were  concerned  it  was  said  that  there  was  no  proper  retail

facility.  The  people  of  Bushbuckridge  have  to  drive  or  travel  by  public  transport  to

reach  retail facilities  in either  Hazyview, White  River or  Nelspruit. There  was  a   need

for  such facilities  to  promote the concept  of employment  and  residential opportunities

in close  proximity  to  each other.  It was  also  said that  the  municipality  would impose

conditions  for  this   development   for  the  protection  of  the  residential      surrounding

developments.  The  Council  therefore  recommended  the  amendment  of  an approved

DFA  application.   I  also  note  from  the  Introduction  that  Applicant  wants  me  to  set

question  of  condonation,  prejudice,  and appropriate relief.

12 .

As  I have said, Applicant  has based  its case  on the  provisions  of  PAJA.  If the  shoe

pinches, it cannot  then  casually  revert to  a transgression  of the  principle of legality.

See: Comair v Minister of Public Enterprises 2016 (1) SA  1 GP at par. 21 and 22

and  the  discussion  on  this  topic  in Annual  Survey  of  South African  Law,  2014, at

46.  As  I have  said,  Third  Respondent  was  of  the  view  that  its  decision  to develop

the   relevant   property   for   middle-income   housing   projects   and  another shopping

centre  and  filling  station_,  was  a  policy  decision  that  it  took  for  the  benefit  of  the

community.   Policy  decisions  taken  by  executive  organs  and  legislative  organs  are

not  subject  to  scrutiny  and  second-guessing   by  a  Court  in  the  absence  of    clear

illegality.

See:  Comair supra at par.  45.  Furthermore,  as  Mr N. Maritz SC, on behalf of  Fourth

and  Sixth  Respondents  submitted,   an  Applicant   in  such  an  instance,  and  in    the

by reason of relevant breaches of whatever statutory provisions it relies upon.

See for instance:  Patz  v Greene and  Company  1907  TS 421, which  lays down the

relevant principle which has been followed by various Courts since then.

See:  CD  of  Birnam  (Suburban)  (Pty)  ltd  and  Others  v  Falcon  Investments Ltd

1973 (3) SA  838  WLD,  Herbst  v Dittmar  en  'n Andere   1970 (1) SA 238  T at 243F,

Bedfordview   Town  Council and Another  v  Mansyn  Seven  (Pty)  ltd  and  Others

1989 (4) SA  599  WLD and  Jacobs and Another  v  Waks  1992 (1) SA  521 (AA).

In  Verstappen  v  Port  Edward  Town  Board  and  Others  1994 (3) SA  569 (D and

CLO)  at  574 A,  the  Court  said  the  following:  "In  order  to  determine  whether  a

member  of  the  public  has  locus  standi  to  prevent  the  commission  of  an      act

prohibited by statute, the first enquiry is whether the legislature prohibited the   doing

of the act in the interest of any particular person or class of persons or whether it

was  merely prohibited in the general  public interest.  If the former,  any  person who

belongs to the class of persons in whose interest the doing of the act was  prohibited

may interdict the act without proof of any special damage. If not, the Applicant   must

doings  of  the  act".  In  my  view,  Mr  N.  Maritz  SC  is  correct  in  submitting  that  this

principle applies  to the  present facts  and in the  context  of the  relief  sought  by way of

Prayers 7 to  11.

It is clear  from  the  Founding Affidavit  and  the  Supplementary  Founding Affidavit that

there  is not a  single  factual  allegation  by the  Applicant  herein  to  show  that  it either

has,  or  will   suffer   real  damage   if  the   relevant   development   of  the   municipality

continues.  The few  allegations  that  do exist  in this  context  are  in the  nature of mere

conclusions  raised on  Competition  Law  considerations,  but even they  do  not contain

any  specific  relevant facts.

I must  add  that  Applicant  did  not  approach  this  Court  on  the  basis  of  any Human

Right infringement  as  provided for  in Chapter  1 of the  Constitution  of the Republic.

13.

There  is  in  my  view  no  evidence  on  the  Affidavits  that  any  rights  of  the Applicant

have  been  adversely  affected   by  any  of  the  decisions   that   it  relies  on  in    these

nature, namely those referred to in Prayers 1, 2, 3, 4 and 5 of the Amended Notice

of  Motion and others  are of a  policy-laden  nature, whilst  as  a whole  the Applicant

has not shown in any event that any of the particular decisions have caused it real

damage. It is furthermore clear that the "decisions" of the Third Respondent that   the

Applicant  refers to  in Prayer  6  of the Amended  Notice  of  Motion are  in fact  not a

decision of the Third Respondent, but merely recommendations.

14.

I   accordingly  hold that  Applicant  has  not shown  that  it  has  locus  standi in  these

proceedings  and  accordingly  the  point  in limine in this  context  is upheld.

15.

Unreasonable  delay:

The  provisions  of  s.  7  of  PAJA  are  determinative.  Any  proceedings  for   judicial

review must be instituted without  unreasonable  delay  and not later than  180   days

action, became aware of the action and the reasons for it, or might reasonably   have

been expected  to  have become aware of the action and the  reasons.  In terms   the

provisions  of  s.  9  of  the  Act,  the   180  day  requirement  may  be  extended     on

application. The Court may grant such an application where the interests of justice

so  require.  In  Aurecon   SA  (Pty)  Ltd  v  City   of  Cape  Town [2016]   1 All  SA   313

(SCA), it was held that s_. 7 ( 1) does not mean that an application must be launched

within  180 days  after the  party seeking  a  review  became aware that  any  relevant

administrative  action  was  tainted  by  irregularity.  An  application  must  be decided

within  a reasonable time,  but in any event within a period of  180 days.  If this is   not

done, an extension as envisaged in s.  9  (1)  (b) is required, failing which  a Court   is

precluded from entertaining the review application.

An Applicant must make out a case for such an extension and whether or not it is in

the  interest  of  justice   to  condone  a  delay  depends  entirely  on  the  facts     and

circumstances  of each case. The  relevant factors  in that  enquiry generally   include

the  nature of the  relief sought,  the  extent  and  cause of the delay,  its effect  on the

the delay which must cover the whole period thereof, the importance of the issue to

be raised, and the prospects of success.

16.

In  Applicant' s  Founding  Affidavit,  the  following  is  said  in  this  context:  He  was

advised he said to "briefly" invite this Court's attention to the time frames referred to

in  s.  7  of  PAJA  and,  "if  necessary",  request  condonation  for  any  possible non-

compliance with such time frames. Several factual submissions were then made  and

Applicant says that certain rumours during July 2012 led him to write a letter to   First

Respondent.  It then  embarked  upon an  investigation  and during  December  2012

instructed  its Attorney  to assist  in procuring  information from the Second  and   the

Third  Respondents.  Ultimately,  after  many  attempts  through  various  channels to

obtain  a  copy  of  any  relevant files,  such  were  only  made available to Applicant's

Attorney on 17 February 2013.

17.

Many  of  the  allegations  made  by Applicant  in this  regard were  contested  by  the

Respondents.  On behalf of  First and Second  Respondents,  it was  contended  that

the   allegation   that Applicant	spent   a   year   searching   for   information   on the

Amendment Application that is relevant to the relief sought, could not be further  from

the truth.  In fact, on 4 July  2012, a copy of the relevant application file was   handed

to a  Mr R. Shabangu  on behalf of the Applicant.  On behalf  of Third  Respondent   it

was contended that the Applicant  had not covered the full period of the delay from  4

July 2012. On behalf of the Fourth and Sixth Respondents it was submitted that the

Applicant  did not make out a case for justifying  the grant of an order extending    the

prescribed time periods. Applicant's case was that it had to obtain the full record of

the proceedings before the tribunal referred to in the relevant prayers before it could

launch an explanation.  This  however  loses sight of the  purpose of  Rule 53 of    the

Uniform Rules of Coult in terms  of which Applicant  could have obtained the   record

of the  proceedings  within  15 Court days. The  process  of a  review  under this Rule

Founding  Affidavit,  and  expressly  affords  to  an  Applicant  the  right to  supplement its

founding   papers  on   receipt  of  the   record  and   the   reasons   given   by  the   relent

decision-maker.  Applicant's  contention  that  it first  had to establish the  grounds for

illegality   of   the   proceedings   before   it   could   launch   the   review   application was

untenable, and was in conflict with clear authority.

See  in  this  context  Associated  Institutions  Pension  Fund  and  Others  v  Van Zyl

and Others 2005 (2)  SA 302 (SCA) par.  51 to 53.

The  Fourth  and  Sixth  Respondents   also  allege  that  the  Registrar  of  the    Tribunal

referred to  in the  Notice of  Motion  made  copies  of the  entire  Amendment Application

and delivered  it to Applicant  via  Mr  Shabangu.  They  allege further  that the  MEC  and

other  officials  met with  Mr Shabangu  and other  representatives  of the Applicant  on  3

August  2012  to  discuss  the  Amendment  Application.  This  meeting  was  attended by

the   MEC,   Mr   Kleynhans,   of   the   Department   of   Rural   Development   and   Land

Administration,   Ms  Motaung  from  the  Tribunal,  Mr  Shabangu,  Mr  Jason McCormick

from  the  Applicant  and  his  father  John  McCormick.  At  this  meeting,  Applicants said

Amendment  Application  and  its approval  by the  Tribunal.  Prior to  that  the  entire

Amendment Application had been handed to Mr R. Shabangu on behalf of Applicant.

Ms Motaung confirmed this. She also stated that the Apllicants'  representatives  had

confirmed to the MEC that they had indeed received all relevant information on 4

July  2012.  She  was  emphatic  that  Applicants'  allegation  that  its  letter  of  3 July

2012  had not even been granted the "courtesy  of a reply" was false. Mr   Kleynhans

similarly  confirmed  these  facts.  Applicant,  in its Replying Affidavit  denied  that  Mr

Shabangu  had been  its "representative",  but admitted  that  he had been asked   to

facilitate  a meeting with the  MEC to discuss  concerns  raised in its letter of  3   July.

The meeting itself was not denied, but merely that Applicant had been in  possession

of all relevant information. In the Replying Affidavit in the urgent application to the

Fourth and Sixth  Respondents'  Answering  affidavit,  Mr Jason  McCormick  made a

rather  vague  reference  to  such  meeting  and  regarded the  "discussion"  with First

Respondent  as  "unsatisfactory".  An  enquiry  at  the  office  of  Mr  Shabangu  "only

yielded  an incomplete  copy  of the Amendment  Application",  so  it was  said.  In my

Founding   Affidavit.    These    Respondents   further    say   that  Applicant's	adequate

knowledge   of   the   relevant   facts   appears   from   the   correspondence   sent   by its

Attorney to the Respondents and various State Departments after these dates in any

event.

18.

Quite  apart  from  the  fact  that  I  must  apply  the  test  formulated   in  Plascon-Evans

Paints Ltd v Van Riebeeck Paints (Pty) Ltd  1984 (3) SA 623 (A), which is so  well-

known that  it  does  not  have to  be  repeated  again,  there  are  certain  objective  facts

that  do  not  support  Applicant's   alleged  ignorance  of  all  relevant  facts,  and  in  fact

detract from  its innocent  explanations.  As  I have said, the  relevant  review  application

was  issued  in  this  Court  on  9  May  2013.  On  3  July  2012,  Acorn's  Director   John

McCormick  wrote  to  the office  of  the  MEC  Mpumalanga  Provincial  Government and

it appears  that  this  letter was  delivered  by  hand to  one  of the  Department's officials.

The content  of this  letter  is significant,  and  it is not properly  explained  in   Applicant's

"DEVELOPMENT  FACILITATION  ACT  APPLICATION  REGARDING  A  PORTION OF

PORTIAN  3  OF THE  FARM GREENVALLEY  NO 213KV

In  terms  of  any  DFA  application,  one  of  the  processes  that  should  be  undertaken

and  completed  by  the  applicant  for  any  change  in zoning  or  proposed development

is that  such change or proposal be brought to the  notice of affected     parties.

In  the  case   of  the   DFA   hearing   regarding  a   portion  of   [Portion  ..   of  the   farm

Greenvalley  No  2.. KV], it has come to  our  notice that  a  proposed development   has

been  proposed  with  the  concomitant   change  in  zoning.  We  are  Acornhoek    Plaza

Share  Block  (Pty)  Ltd  owners  of  the  Acornhoek  Plaza  situated  not  more  than  6 00

metres from  this  proposed development.  We  have  never  been approached  or   made

aware  of  the  DFA  hearing  such  that  we  could  object  or  make  our  side  heard.    In

short, we,  as the  major  neighbouring  development  were  completely ignored.

We,  in the  most stringent  terms  stress that the findings  of the  DFA be rescinded   and

the  entire  process  be allowed  to  start  at the  beginning  whereby  we,  as the  affected

party, can  make  presentations.  It is also  our  enquiry  as to  how  the  land  referred  to

resorting to a public auction.

Your urgent attention is requested on this matter."

It is obvious that certain factual allegations  are made therein which  clearly   indicate

that the Applicant had more knowledge of the relevant facts than the mere  "rumours"

that   it   referred   to   in   the   Founding Affidavit.	Furthermore,  another  significant

document  was  issued  by Applicant's  Attorneys  on  10 December  2012.  This  is a

covering letter to an application in terms of the Promotion of Access  to  Information

Act 2 of 2000. Again,  it is clear that Applicant  had substantially  more information   at

its disposal  than the "rumours" that  I have already  referred to. Amongst  others  the

following  appears  from  this  letter:  "Our  instructions  are  that  recently,  a    similar

Shopping   Centre facility,	has  apparently   been  approved   by  the   Mpumalanga

Development Tribunal to an Applicant  who  alleges that  his authority  and power   of

Attorney  to  lodge  such  an  application  stems  from  a  Land Availability Agreement

concluded  between  your  municipality  and  such  Applicant,  being the Mamokhuthu

Group  Development  CC  (the  Fourth  Respondent  herein)".  Furthermore Applicant

regard,  such  authority  has  not  been granted  to the Applicant  by either  the South

African Government, the Mpumalanga Provincial Government or your municipality by

virtue  of  any  Land  Availability  Agreement  or  any  resolutions  and/or  powers    of

Attorney  which should  have formed  an integral part of the application for the   land

development  area  when  same  was  submitted".  The  form  that  is attached  to this

letter amongst others says the following: "Attorney of record for our client the detail

of which  is provided  infra.  Our client  is a  property  owner, tax  payer and  business

entity  with  vested  interests  in  Bushbuckridge  and  within  the jurisdictional  area of

your municipality and moreover the owner of a Shopping Centre + / -  600 metres

from the property, which forms the subject matter of this enquiry and therefore has  a

direct and material interest in the development of - and dealing with such property".

Apart from the fact that certain of these factual allegations are not true, the   following

then also appears  in the context of the information sought: "Agreements   concluded

between  your  municipality,  the  applicable  Provincial  Government  and/or  the  SA

Government by virtue of which the original use of land for middle-income   residential

Also, the following: "Municipal resolutions by virtue of which the original purpose of

the allocation of land to Mamokhuthu Development Group CC i.e. for residential,  has

been changed  to that  of a commercial  Shopping  Mall".  Furthermore  the following:

"Land Availability Agreements and amendments thereof by virtue of which such  new

intended	commercial	use	of	the	subject	property	has	been	authorised	to

Mamokhuthu  Development Group CC	"  It is  quite  clear  from  this  letter  and its

Annexure that Applicant  had been in possession of certain material facts and   those

were of a nature substantially  more than the  mere "rumours" that  it put forward    its

Founding  Affidavit.  They  were  also  of  such  a  nature  in  my  view  that  a  review

application could  have been launched  by 3 July  2012 and certainly  by  3     August

2012  after  the  relevant  meeting  that  I  have  mentioned,  and  which  meeting the

Applicant chose not to disclose in the Founding Affidavit. The delay has in my view

not been properly  explained  by the Applicant,  quite apart from the fact that     many

allegations  made  by it in this  context do  not appear to  be factually  correct on   the

one  hand and have not been disclosed  on the other  hand. Furthermore,  it is   clear

sought  for.  I will  deal  with  this  aspect  in  the  context  of  the  provisions  of  s.  9     of

PAJA  as well.

19.

Having regard to the  relevant  facts,  the  most  important  of which  I have  mentioned, it

is  my  view  that  the  review  application  was  not  brought  within  a  reasonable    time.

Applicant  therefore  required  an  extension  as  envisaged   in  s.  9   ( 1)  (b)  of   PAJA.

There  is  no  such  condonation  application  before  me,  but  if  I  do  regard  the   rather

hesitant   and  reluctant   allegations   in  the   Founding  Affidavit   as  an  application  for

condonation  then  I must  consider  the  factors  referred  to  in  the  Aurecon  decision of

the  Supreme  Court  of  Appeal.   Having  regard  to  the  original  relief  sought  and   the

amended  relief  sought,  it  is  my  view  not  in the  interests  of justice  that  condonation

be granted.  I agree with  the argument  of the  First and  Second  Respondents  that  the

consequences  of  the  Applicant's  delay  are  in fact  drastic.  The  relevant  conditions of

approvals  have  already  been  met  in  the  context  of  the  particular  development  and

implemented  at  a  substantial  cost  and  expense.   They  are  for  the  benefit  of     the

community  according  to  the  Municipality  of  Bushbuckridge  and  it  is  not  for  me    to

second-guess   such  policy  decision.  According  to  the  relief  sought  in  the  amended

Notice  of  Motion,  Applicant  wants   me  to  undo  resolutions  taken   in  2007  as    per

Prayer  1,  an  Engineering  Services  Agreement  concluded  in  2000  as  per  Prayer  2

amongst  others.  It is also  sought  that  I review  certain  decisions  made  in  2012. This

is  not  in the  interests  of justice  and  in the  interests  of  all the  individual  persons that

would  most  likely  be affected  by  such  an  order.  The  cause  of  the  delay  has  in my

view  not  been  satisfactorily  explained  herein  and the  explanation  that  is tendered  is

not  reasonable   having   regard  to  the  objective   facts   that   I  have   mentioned. The

whole    period   of   the   delay   has   also   not   been   dealt   with   by   the    Applicant.

Furthermore,  the  rights that the Applicant  relied on initially  and certainly  did so  in   the

interim  urgent  application  more  or  less fell  by the  wayside  as  the  case  progressed,

and  the  only   right,  if  I  can  call  it  such,  is  that  the  Applicant   is  the  holder  of     a

Permission   To   Occupy   the   premises   it   seeks   to   protect   against   competition. I

44

condonation for the unreasonable delay  in this  instance.  I am also of the view   that

the public interest herein would demand that this long outstanding matter be  brought

to finality,  for the  benefit  of the community  in this  area.  I have already  held in any

event that the Applicant  does  not have  locus standi in iudicio in these   proceedings,

and it is my overwhelming  impression that it merely seeks to protect its own  financial

interests and avoid competition which may or may not arise.

20.

The  result  is  that  the  objection  in  limine  relating  to  an  unreasonable  delay   as

envisaged by the provisions of s. 7 of PAJA, is  upheld.

21 .

The  application  is accordingly  dismissed  with  costs  including the  costs  of two

Counsel,  where  such  was  utilised  and  including  the  costs  of  Senior Counsel,

where such Senior Counsel was utilised. The interim order granted by this Court

..

45

 
JUDGE  H.J FABRICIUS

JUDGE  OF THE  GAUTENG  HIGH COURT,  PRETORIA 

46

Case number: 2 7542 / 13

Counsel for the Applicant:

Adv M. C. Erasmus SC

Adv J. A. Venter

Instructed by: Adriaan Venter Attorneys & Associates

Counsel for 151  &  znd  Respondents:

Counsel for 3'd Respondent:

Counsel for 4th & 6th Respondents:

Adv K. M. Mokotedi

Instructed by: The State Attorney

Adv E. C. Labuscagne SC

Instructed by: Mculu Incorporated

Adv N. G. D. Maritz SC

Adv C. F. Van der Merwe

Instructed by: Ivan Pauw & Partners Attorneys

Date of Hearing:	2 9  &  30 March 2016