Power Road Taxi Developers (Pty) Ltd v The MEC Local Government And Housing, Free State Province
| Jurisdiction | South Africa |
| Judge | Rampai J et Ebrahim J |
| Judgment Date | 08 February 2007 |
| Docket Number | R215/2005 |
| Hearing Date | 16 October 2006 |
| Court | Orange Free State Provincial Division |
Rampai J et Ebrahim J
The matter came to this court by way of an application for the review of an administrative decision. The review originates
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from an application made in terms of section 3 of the Removal of Restrictions Act No. 84/1967 in order to have a restriction pertaining to the township development scheme of Thabong in Welkom amended. The application for the amendment of conditions of land use was made by the third respondent and submitted to the first respondent for consideration. In due course the first respondent caused a notice of the third respondent's application to be published in the provincial gazette and two newspapers circulating in the province. In addition to the publication, the first respondent caused the copies of such notice to be given to each of the owners of the neighbouring properties. The notice was given and published in terms of section 3. The first respondent's decision to give no notice to the applicant triggered off this review.
This review concerns a property situated at Erf 8001, Thabong on the outskirts of Welkom in the Free State Province. It is to be found in Constantia Street. It measures 9 700 square metres. Its previous owner was the second respondent. It was previously used as a clinic. It changed hands in 2001. The third respondent purchased it for R225 000,00. Before then it was earmarked as a community facility. Subsequent to the sale, on 9 April 2004 to be precise, the third respondent applied to the first respondent for the amendment of such condition. The first respondent granted the required approval in terms of section 2 Act No. 84/67 on 1 March 2005. The approval
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entailed the rezoning of the land use of the erf from community facility use to business use. I shall refer to it as "the erf".
The applicant is the owner of Erf 7855 situated at the corner of Power Road and Hofmeyr Road in Welkom. Its previous owner was the predecessor to the second respondent. It sold for R1 325 000,00. The applicant developed it into a public taxi terminus. Apart from that the site also has a shopping complex and a fuel service station. The initial capital layout of the property was R6,2 million expended in 1991. Two years later the applicant injected an additional R8 million capital into the project for its further development. The property is worth R35 million currently. From now on I shall refer to it as "the property".
The notice in terms of section 3 Act No. 84/67 was provisionally gazetted on 4 March 2005 and published in two newspapers, "Die Volksblad" and "The Citizen". There were apparently no objections received within the period specified in the notice. But certainly after the expiry of the period prescribed for public comment, the first respondent had not received any objection from the applicant against the third respondent's application for the rezoning of the erf.
Prior to the sale of the erf to the third respondent it was zoned for use as a community facility. It was the rezoning of the erf which precipitated the conflict between the erf owner and the
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property owner. In KNOP v JOHANNESBURG CITY COUNCIL 1995 (2) SA 1 (AD) at 30 e Botha JA remarked as follows about this sort of conflict:
"In the local authority's consideration of an application there are potentially conflicting interests at stake: those of the applicant owner who wishes to use his property to his own best advantage; those of neighbouring owners in the locality who may be adversely affected by the subdivision; and those of the local authority itself, which is charged with the supervision of the orderly, harmonious and effective (economically and otherwise) development of the area, 'to promote the health, safety, good order, amenity, convenience and general welfare of such area'. In coming to a decision on the application, the local authority must weigh up the conflicting interests involved."
In its founding affidavit the applicant advanced no less than 17 grounds on which it relied in order to have the decision of the first respondent reviewed and set aside. Although the applicant's founding affidavit was heavily loaded with an arsenal of grounds of review only one ground of review was carried forward in the replying affidavit and persisted with during argument before us. Therefore, for the purpose of this judgment, I shall pay particular attention to the remaining ground of review. It is the anchor of the applicant's case.
The applicant comes on review on the principal ground that the first respondent failed to comply with the procedure as
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prescribed in section 3(6) Act No. 84/67. The crux of the applicant's case is that in terms of the section the first respondent was legally obliged to give notice of the third respondent's rezoning application to the applicant as the owner of a nearby property on the ground that the application directly affected its property.
The first four respondents put up a common defence, the gist of which is that, in the opinion of the first respondent, the applicant was not directly affected by the rezoning application. That being the case, they all contended that the first respondent was not legally obliged to give notice to the applicant in terms of the section. The fifth respondent did not descend into the arena.
The essence of this review is procedural fairness. The general rule of our common law requires that an individual who has an interest in a matter is entitled to be notified about an administrative matter that affects him if tabled before an administrative organ for consideration and decision. The underlying purpose of such a notice is to afford such a person an opportunity of protecting his interests. The audi alteram partem rule demands that he is entitled to be heard before a decision is taken by an administrator on the matter that directly affects him.
In the year 1967 the provision we are here concerned with saw the light. Section 3(6) Act No. 84/67 provides:
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"(6) On receipt of an application the Director-General shall cause a notice in both official languages to be published once in the Provincial Gazette of the province and twice with an interval of one week in a newspaper circulating in the area in which the land is situate, stating that such an application has been made, that it is open to inspection at the office of the Director-General and at any other place or places, if any, mentioned in the notice, and that objections against the application may be lodged with the Director-General on or before a specified date which shall not be less than twenty-one days after the date of the last publication of the notice, and the Director-General shall also cause, where possible, a copy of the notice to be served on every owner of land who in his opinion is directly affected by the application, such service to be effected by registered post addressed to such owner at his last known address. [Sub-s. (6) amended by Proclamation R160 of 31 October 1994.]"
In the year 1996 the RSA Interim Constitution was adopted as the supreme law of the country. Section 33 thereof provides:
Just administrative action
(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must-
(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
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(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration."
In the year 2000 national legislation was enacted. Section 3 Promotion of Administrative Justice Act No. 3/2000 provides:
Procedurally fair administrative action affecting any person (1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.
(2)(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)-
(i) adequate notice of the nature and purpose of the proposed administrative action;
[Sub-para. (i), previously para. (a), renumbered by s. 46 of Act 42 of 2001.]
(ii) a reasonable opportunity to make representations;
[Sub-para. (ii), previously para. (b), renumbered by s. 46 of Act 42 of 2001.]
(iii) a clear statement of the administrative action;
[Sub-para. (iii), previously para. (c), renumbered by s. 46 of Act 42 of 2001.]
(iv) adequate notice of any right of review or internal appeal, where applicable; and
[Sub-para. (iv), previously para. (d), renumbered by s. 46 of Act 42 of 2001.]
(v) adequate notice of the right to request reasons in terms of section 5.
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[Sub-para. (v), previously para. (e), renumbered by s. 46 of Act 42 of 2001.]
(3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity to-
(a) obtain assistance and, in serious or complex cases, legal representation;
(b) present and dispute information and arguments; and
(c) appear in person."
In terms of section 1 Promotion of Administrative Justice Act No. 3/2000 an administrative action means:
"(a) an organ of state, when-
(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power...
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