JDJ Properties CC and Another v Umngeni Local Municipality and Another

• Jurisdiction: South Africa
• Judgment Date: 29 November 2012
• Citation: 2013 (2) SA 395 (SCA)

JDJ Properties CC and Another v Umngeni Local Municipality and Another
2013 (2) SA 395 (SCA)

2013 (2) SA p395

Citation	2013 (2) SA 395 (SCA)
Case No	873/11; [2012] ZASCA 186
Court	Supreme Court of Appeal
Judge	Lewis JA, Heher JA, Theron JA, Pillay JA and Plasket AJA
Heard	November 8, 2012
Judgment	November 29, 2012
Counsel	A Rall SC for the appellants.; RM van Rooyen for the first respondent.; AJ Dickson SC for the second respondent.

Flynote : Sleutelwoorde E

Administrative law — Administrative action — What constitutes — Municipality's approval of building plan involving relaxation of parking-place and side-space requirements — Adversely affecting rights of property owner and F business across road, and having direct, external legal effect — Promotion of Administrative Justice Act 3 of 2000, s 1.

Practice — Parties — Locus standi — Landowner — Seeking review of municipality's approval of developer's building plan for site across road — Town- planning scheme operating in favour of land and business owners and this G giving them standing — Constitution, s 38(a).

Headnote : Kopnota

In issue in this case was whether a municipality's approval of a building plan involving a relaxing of side-space and parking requirements was administrative action; whether the landowner across the road had standing to H review the municipality's decisions; and whether the appellants had failed to exhaust another remedy available to them before resorting to a review.

Its facts were that a municipality sold a property in the central business district of a town to a developer. The developer's aim was to construct a shop building on the property and to lease it to a retailer, and to this end the developer found a retailer who would operate a supermarket for I lower-income earners. Because the supermarket's clients would typically not own vehicles, the developer applied to the municipality for a relaxing of the town-planning scheme's parking-place requirement and also for a waiver of the scheme's side-space requirement to allow it to build up to the property line. The municipality approved these requests as well as the rest of the building plan and the developer then concluded the lease with the retailer and began construction of the building. J

2013 (2) SA p396

A Sometime after the developer had submitted its building plan to the municipality, the owner of the properties across the road (the first appellant) and the owner of the business on those properties (the second appellant) had come to hear of the proposal and had made representations to the municipality in opposition to it. After the municipality had approved the plan the appellants applied to a high court to review the approval but they were unsuccessful B and they then appealed against the high court's decision to the Supreme Court of Appeal.

In issue firstly was the high court's finding that the approval of the building plan had not been an administrative action because the appellants had failed to show that the approval had adversely affected their rights or had a direct, external legal effect within the meaning of s 1 of the Promotion of C Administrative Justice Act 3 of 2000. The Supreme Court of Appeal disagreed on two grounds: it held that the supermarket's clientele would need transport to the supermarket and that inevitably the transport would use the free parking provided by the appellants to their customers. Thus the appellants' right to reserve parking for their customers would be directly and adversely affected. And secondly, the municipality's approval adversely D affected the appellants' right to enforce compliance with the town planning scheme. (Paragraphs [18] – [21] and [23] at 404B – I and 405D – 406A.)

The second issue on appeal was whether the appellants had a sufficient interest in the matter to give them standing to challenge the municipality's approval of the developer's plan. This was to be determined by considering the factual and legal context. The court held that the appellants had a sufficient E interest: they were persons in whose favour the town planning scheme operated and accordingly they had a right to enforce it. It operated in their favour on the basis that they were an owner and lessee of property within the modest area covered by the scheme; that the appellants' properties and business were within the same use zone as the development; and that the appellants and the development were proximate, being across the road from F one another. The appellants' interest, as persons in whose favour the scheme operated, was sufficient for the purposes of s 38(a) of the Constitution, to enable them to apply to a court to vindicate their right to just administrative action in s 33(1). (Paragraphs [25], [27], [30] and [34] – [35] at 406D – E, 407C, 408C – D and 409E – 410A.)

The third issue was whether the appellants had failed to exhaust a remedy G provided by another law before resorting to a review. The court concluded that neither of two possible remedies, the one in s 62 of the Local Government: Municipal Systems Act 32 of 2000, and the other in s 9(1)(c) of the National Building Regulations and Building Standards Act 103 of 1977, had been available to the appellants. (Paragraphs [37] – [38], [40] and [49] at 410E – H, 411B – D and 413C – E.) H

Cases Considered

Annotations:

Case law

Administrator, Transvaal and The Firs Investments (Pty) Ltd v Johannesburg City Council 1971 (1) SA 56 (A): referred to I

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): referred to

Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to J

2013 (2) SA p397

BEF (Pty) Ltd v Cape Town Municipality and Others 1983 (2) SA 387 (C): A dictum at 401E applied

Bindura Town Management Board v Desai & Co 1953 (1) SA 358 (A): referred to

Camps Bay Ratepayers' & Residents' Association v Harrison [2010] 2 All SA 519 (SCA): referred to

Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another B 2011 (4) SA 42 (CC) (2011 (2) BCLR 121): referred to

City of Cape Town v Reader and Others 2009 (1) SA 555 (SCA): dictum in paras [30] – [32] applied

Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA): referred to

Democratic Alliance v Ethekwini Municipality C 2012 (2) SA 151 (SCA): referred to

Esterhuyse v Jan Jooste Family Trust and Another 1998 (4) SA 241 (C): referred to

eThekwini Municipality v Tsogo Sun KwaZulu-Natal (Pty) Ltd 2007 (6) SA 272 (SCA): dictum in para [25] applied

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others D 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17): referred to

Golube v Oosthuizen and Another 1955 (3) SA 1 (T): referred to

Grey's Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA) (2005 (10) BCLR 931; [2005] 3 All SA 33): applied E

Heritage Hill Home Owners Association v Shoprite Checkers (Pty) Ltd and Others [2012] ZASCA 65: referred to

Johannesburg Municipal Pension Fund and Others v City of Johannesburg and Others 2005 (6) SA 273 (W): referred to

Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC) (2010 (3) BCLR 212): referred to F

Kruger v President of Republic of South Africa and Others 2009 (1) SA 417 (CC): dictum in para [25] applied

Lawson v Cape Town Municipality 1982 (4) SA 1 (C): referred to

Mahlaela v De Beer NO 1986 (4) SA 782 (T): referred to

Maluleke v MEC for Health and Welfare, Northern Province 1999 (4) SA 367 (T) ([1999] 4 All SA 407): referred to G

Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province and Others 2008 (2) SA 481 (SCA) (2008 (5) BCLR 508; [2008] 2 All SA 145): referred to

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1; [2005] ZACC 14): referred to H

Muller NO and Others v City of Cape Town 2006 (5) SA 415 (C): referred to

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1): referred to

Paola v Jeeva NO and Others 2004 (1) SA 396 (SCA) ([2003] 4 All SA 433): referred to I

Patz v Greene & Co 1907 TS 427: referred to

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): referred to

Pick 'n Pay Stores Ltd and Others v Teazers Comedy and Revue CC and Others 2000 (3) SA 645 (W): referred to J

2013 (2) SA p398

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): referred to A

Prinsloo & Viljoen Eiendomme (Edms) Bpk v Morfou 1993 (1) SA 668 (T): distinguished

PS Booksellers (Pty) Ltd and Another v Harrison and Others 2008 (3) SA 633 (C) B ([2007] 3 All SA 552): referred to

R v Gwantshu 1931 EDL 31: referred to

Radio Pretoria v Chairman, Independent Communications Authority of South Africa, and Another 2005 (1) SA 47 (SCA): referred to

Rinaldo Investments (Pty) Ltd v Giant Concerts CC and Others [2012] 3 All SA 57 (SCA): dictum in paras [15] and [16] applied

Roodepoort-Maraisburg Town Council v Eastern Properties (Pty) Ltd 1933 AD 87: dictum at 96 applied C

S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401; [1995] ZACC 1)...