Du Toit and another v Mangaung Metropolitan Municipality and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Daffue J
• Judgment Date: 22 August 2023
• Citation: 2023 JDR 3201 (FB)
• Hearing Date: 20 July 2023
• Docket Number: 6019/2022
• Court: Free State Division, Bloemfontein

Daffue J:

INTRODUCTION

[1]

The trustees of the Raubenheimer Trust TMP4320 (herein later referred to as the Trust) submitted a land use application in terms of the Free State Townships Ordinance, 9 of 1969 (the 1969 Ordinance) to the Free State Department of Corporate Governance, Traditional Affairs and Human Settlement (COGTA) on 1 November 2010. That is 13 years ago. It sought the subdivision of one of its properties, consolidation of properties and township development in respect of the consolidated property. These properties are situated in the Rayton township situated to the north of the city centre of Bloemfontein. The Trust is still awaiting finalisation of its application. Although irrelevant to this application, it is deemed appropriate to say that it is nothing, but an injustice, that residents seeking to develop their properties should be presented with the enormous difficulties experienced in casu.

2023 JDR 3201 p3

Daffue J

[2]

The applicants in this application obtained a rule nisi on 1 December 2022 as set out fully hereunder. In 2018 and after the Trust’s application referred to in the previous paragraph was submitted, the second applicant bought a property adjacent to the properties to be developed by the Trust. The applicants want to participate in the proceedings before the Municipal Planning Tribunal (MPT) that has to adjudicate the land use application of the Trust in accordance with the present legislation. The central issue to be decided by the court is whether the applicants are interested persons entitling them to participate in the hearing before the MPT. The outcome will determine whether the rule nisi should be confirmed or discharged.

THE PARTIES

[3]

The applicants are MrWillem Jacobus du Toit and Mrs Tanya Marie du Toit, a married couple permanently resident at 17 Lilyvale road, Rayton, Bloemfontein. The second applicant is the registered owner of this property (the second applicant’s property). Adv HJ Cilliers appeared for the applicants on instructions of Matsepes Inc.

[4]

The Mangaung Metropolitan Municipality (the Municipality) is cited as the first respondent. The heading of the application papers as well as paragraph 3.2 of the founding affidavit indicate that the application is aimed at the Municipality’s MPT. Adv AH Burger SC appeared for the Municipality on the instructions of Maduba Attorneys Inc, Bloemfontein

THE RELIEF SOUGHT

[5]

On 1 December 2022 a rule nisi was issued on application of the applicants in the following terms:

‘1.

Condonation is granted to the Applicants for the non-compliance with the Rules of Court pertaining to service, time limits, form and procedure and that this application be heard as an urgent application as contemplated in rule 6(12);

2.

Condonation is granted to the Applicants for the non-compliance with the provisions of Section 35 of the General Law Amendment Act 62 of 1955;

2023 JDR 3201 p4

Daffue J

3.

A Rule Nisi is issued calling upon the First Respondent to show cause, if any, to this Honourable Court on 26 JANUARY 2023 at 09:30, why the following orders should not be granted and made final:

3.1

That the First Respondent be interdicted and prevented from proceeding with the Municipal Planning Tribunal hearing set down for 2 December 2022 at 08:00 relating to an application for the subdivision, consolidation and township establishment of Plots No. 9 and 12 Lilyvale Small Holdings, Rayton, Bloemfontein, Free State Province, until finalization of this application and compliance with the order issued in terms of this application;

3.2

That the First Respondent be ordered to only again enrol the Municipal Planning Tribunal hearing relating to an application for the subdivision, consolidation and township establishment of Plots No 9 and 12, Lilyvale Small Holdings, Rayton, Bloemfontein, Free State Province, upon reasonable notice to the Applicants after the First Respondent has received the legal advice it has undertaken to obtain to the issues raised by the Applicants as it had undertaken to do in their e-mail to Matsepes Attorneys dated the 27th of January 2022 and furnished such legal advice to the Applicants’ attorneys, and upon reasonable notice to all interested and affected parties;

3.3

That the First Respondent be ordered to provide the Applicants with a copy of the application papers and all other relevant documentation relating thereto submitted by the Second, Third and Fourth Respondents for the subdivision, consolidation and township establishment of Plots No 9 and 12, Lilyvale Small Holdings, Rayton, Bloemfontein, Free State Province within a period of fourteen (14) days after the date of service of this order upon the First Respondent, and upon payment by the Applicants of the reasonable photocopying costs.

4.

The order contained in paragraph 3.1 to operate as an interim interdict with immediate effect;

5.

The First Respondent is to pay the costs of the application on the scale of attorney and client;

6.

The Second, Third and Fourth Respondents are to pay the costs of the application, only in the event of opposing this application.’

2023 JDR 3201 p5

Daffue J

[6]

On 23 December 2022 the Municipality partially complied with paragraph 3.3 of the rule nisi by supplying copies of the application papers and relevant documentation submitted by the Trust for the land use application in respect of its plots 9 and 12 Lillyvale Small Holdings, Rayton. However, it failed to submit annexures “I” to “S” of the application. Notwithstanding this partial compliance with the court order, the Municipality filed a notice to oppose on 12 January 2023 and proceeded to belatedly file its extensive answering affidavit on 16 March 2023. Therein it raised three issues, to wit (a) absence of urgency; (b) non-joinder of the MPT; and (c) lack of locus standi insofar as the applicants had failed to apply to be regarded as interested parties in terms of s 45 of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA).

THE STATUTORY REGIME

[7]

Before dealing with the relevant factual background, it is appropriate to consider the statutory regime that applied from time to...