Appeal against a decision by a political office bearer as postulated by section 62 of the local government: Municipal Systems Act 32 of 2000: City of Cape Town v Reader Revisited

• Jurisdiction: South Africa
• Citation: (2019) 30 Stell LR 447
• Pages: 447-163
• Date: 31 January 2020
• Author: Clive Vinti
• Published date: 31 January 2020

447

APPEAL AGAINST A DECISION BY A POLITICAL

OFFICE BEARER AS POSTULATED BY

SECTION 62 OF THE LOCAL GOVERNMENT:

MUNICIPAL SYSTEMS ACT 32 OF 2000: CITY

OF CAPE TOWN V READER REVISITED

Clive Vinti

LLB LLM

Lecturer, University of the Free State

1 Introduction

Section 62(1) of the Local Government: Mu nicipal Systems Act 32 of 2000

(“Systems Act”) provides an inter nal appeal mechanism for an ag grieved party

whose rights have been adversely affecte d by a decision taken by a political

ofce bearer. This provision must be read together with the injunction that the

appeal authorit y that must consider this appeal may conrm, vary, or revoke

the decision. However, the variation or revocation of a decision may never

detract from a ny rights that may have accrue d as a result of the decision.1

This art icle seeks to evaluate the coalescence of these pr ovisions through the

case of Municipality of the City of C ape Tow n v Reader (“Reader”).2

At the outset, it is prudent to spe cify the scope of this article. It is necessar y

because subsequent to the Reader decision, sect ion 62 became the inst rument

of choice for many aggrieved parties due to t he widespread malfeasa nce that

is plag uing public administration in South Africa. There has been a urry

of litigation on section 62. However, all the judicial pronouncements have

tended to either be on the per iphery of the import of section 623 or to conr m

the ratio of the decision in Reader.4 The effect of this jurispru dence is that

the Reader decision remain s the precedent on matte rs in which an approval

has been grant ed to an applicant by a political ofce bearer. Nevertheless,

there are “th ird parties” who were not par ty to the “approval” decision, who

allege that they are “affected” by th at decision and, therefore, they contend

that they are entitled to appe al the “approval” decision through sect ion 62.

On this score, the cou rt in Reader held that these so-called “third pa rties” are

not entitled to the right of inter nal appeal postulated in section 62(1). It is this

1 Section 62(3) of the System s Act; C Hoexter Administ rative law in Sou th Africa 2 ed (2012) 68–70

2 2009 1 SA 555 (SCA); Y Burns Administrative Law 4 e d (2013) 301-3 04

3 Loghdey v Adva nced Parking S olutions CC 20 09 5 SA 595 (C); Syntell (Pt y) Ltd v The City of C ape

Town WCHC 13-03-2008 case no 17780/07; Turnbull-Jackson v Hibiscus Coast Municipalit y 2014 6 SA

592 (CC) para 15 See Harvey v Umhlatuze Municipality 2011 1 SA 601 (KZP); Evaluations Enhanced

Property A ppraisals (P ty) Ltd v Buffalo Cit y Metropoli tan Municipal ity 2014 3 All SA 560 (ECG)

which focused on t he relationship between s 62(1) of the System s Act and s 7(2) of the Promotio n of

Administ rative Justice Act 3 of 20 00 (“PAJA”)

4 Camps Bay Rate payers and Reside nts Associatio n v Harrison 2011 4 SA 42 (CC) n 10

(2019) 30 Stell LR 447

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ratio that forms the subject of th is enquiry. Consequently, this ar ticle does

not explore the issue of internal appe als of section 62(1) in which the litigants

were a ll party to t he approval/permission application t o the political ofce

bearer as is the case w ith unsuccessf ul tenderers.5

To this end, it is my view that the interpre tation of section 62(1) of the

Systems Act by the court in Reader, failed to str ike a proper balance between

the rights of an aggr ieved applicant and the so-called “ third par ties”. The

object of section 62(1) is to permit “a person” who is “affect ed” by the

decision of a political ofce beare r to appeal that decision. This must include

all persons with a di rect and substantial interest and not just t he applicants for

approval/permis sion from the p olitical ofce beare r. Therefore, it is my view

that the cou rt’s interp retation of the term “a person” in section 62(1) is, rst,

unduly restrict ive and inconsistent with sect ion 39(2) of the Constitution of

the Republic of South Africa, 1996 (“the Const itution”). Second, the cour t’s

approach to section 62(1) denies aggrieved parties thei r right of internal

appeal postulate d in section 7(2) of the Promotion of Administrative Justice

Act 3 of 2000 (“PAJA”); and cont ravenes section 38 of the Constitution as it

unduly restrict s their locus standi. Lastly, the court’s nding that section 62(3)

protects the de cision of the political of ce bearer i s incorrect. The preferable

approach is that of the separat e judgment that held that section 62(3) does

not “insulate” the “decision” but rather, the “right s” that have “accrued” as

a result of the impugned decision. Ult imately, it is my recommendation that

section 62(3) of the Systems Act must be amended to read:

(3) No rights attach to an approval decision, which is th e subject of an

appeal.

This approach would prevent the per petuation of an illegal ity in instanc es

where an unscrupulous political ofce bearer has either collude d with an

applicant or made a patently wrong decision in ord er to accumulate r ights for

the applicant. The discu ssion to follow will outline the nd ings in the Reader

case and then proceed t o evaluate those ndi ngs.

2 The Reader case

2 1 The decision of the Full Bench of the High Court

In Reader v Ikin (“HC Reader”),6 the litigants were owners of adjoining

immovable properties i n Sea Point, Cape Town. The municipality’s zoning

scheme regulations per mitted one to build a th ree-storey house i n the area.7

Prior to the approval of the rst resp ondent’s bui lding plans, her house

consisted of a single-storey buildi ng.8 In pursuance of her decision to ext end

and change her house into a double-storey house in 2003, the rst respondent

5 For a furthe r discussion of this issu e, see Groenewald v M5 Dev elopments (Cape) 2010 5 SA 82 (SCA);

P Bolton “Municip al Tender Awards and Interna l Appeals by Unsuccessf ul Bidders” (2010) 13 PELJ 56

62 who discusses s 62 i n relation to the tend er process

6 2008 2 SA 582 (C) para 4 In t his matter, the f irst responden t was Ikin who was th e owner of the buildin g

in question a nd the second respond ent was the City of Cape Town

7 City of Cape Town v Rea der 2009 1 SA 555 (SCA) para 6

8 Reader v Iki n 2008 2 SA 582 (C) para 5

448 STELL LR 2019 3

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