Stadsraad van Vanderbijlpark v Administrateur, Transvaal, and Others

• Jurisdiction: South Africa
• Citation: 1982 (3) SA 166 (T)

Stadsraad van Vanderbijlpark v Administrateur, Transvaal, and Others
1982 (3) SA 166 (T)

1982 (3) SA p166

Citation	1982 (3) SA 166 (T)
Court	Transvaal Provincial Division
Judge	McEwan J and Franklin J
Heard	November 25, 1981; November 26, 1981
Judgment	March 3, 1982

Flynote : Sleutelwoorde C

Township — Town planning scheme — Amendment to — Such scheme approved by Administrator — Original notice referring to incorrect stand numbers — Such reference rectified in correction notice — Also reference to erf not yet in existence — As such unintelligible — Map referred to D in notice indicating clearly where erf was supposed to be located — Erf in process of coming into existence — Purpose of Ord 25 of 1965 (T) s 36 (1) to give information as a fait accompli, not to call for objections — Clear as to what had been approved — Constituting proper approval despite faulty reference to non-existent erf.

E Township — Town planning scheme — Amendment to — Administrator approving such acting on recommendation of Townships Board — Application for review of such decision — Grounds for setting aside decision of Administrator — Unreasonableness — Mala fides or ulterior motive — Onus on applicant to prove same — Ord 25 of 1965 (T) s 34 (4) not requiring recommendation to be supported by reasons — Giving of unimpressive reasons not constituting an irregularity.

F Township — Town planning scheme — Amendment to — Administrator approving same after recommendation by Townships Board — Allegation of irregularity by applicant in that interview granted by MPC in absence of applicant prior to Administrator's approval — Test to be applied in determination of irregularity or otherwise.

G Township — Town planning scheme — Amendment to — Local authority publishing notices of draft scheme in Provincial Gazette and newspapers as required by Ord 25 of 1965 s 26 — No provision that such notices should be published simultaneously — Where newspaper advertisements published day later than notice in Provincial Gazette prejudice was H minimal — Requirements regarding information given in notices not met exactly — No prejudice suffered — Sections 26 and 27 of Ordinance regs 6 and 7 of regulations made under the Ordinance and Second and Third Schedules peremptory — Object of provisions to give notice of scheme — Notice not invalid.

Headnote : Kopnota

The Municipality of Vanderbijlpark (applicant) applied for the review of a decision of the Administrator, Transvaal (first respondent), in which he had approved an amendment to the town planning scheme of the Vereeniging Municipality (second respondent). Pick 'n Pay Stores Ltd (the holding company of the third respondent), with a view to establishing a hypermarket

1982 (3) SA p167

to serve the Vaal Triangle, had acquired two erven in the Vereeniging municipal area, contiguous to the boundary between Vereeniging and Vanderbijlpark. However, a larger piece of land was required, as well as the consolidation of several neighbouring erven. This scheme A necessitated an amendment of the Vereeniging town planning scheme and to that end approaches were made to the second respondent which resolved to proceed with the amendment scheme. In terms of ss 26 and 27 of the Town Planning and Townships Ordinance 25 of 1965 (T) it was required to give notice of such draft scheme and such notice was duly given. The Vereeniging Town Council then referred the scheme to the Administrator B of the Transvaal for his approval, and he, in turn, referred the application to the Townships Board which recommended that the application be granted. The Provincial Executive finally resolved to approve the scheme, despite contrary recommendations from the Director of Local Government and the chief planner in the Provincial Administration. An Administrator's Notice 1723 purporting to announce the Administrator's approval of the amendment scheme appeared in the C Provincial Gazette, but an error in the notice necessitated a correction notice which was published later. This latter notice was published after the applicant had made application to the Supreme Court to review the decision of the Administrator on two general grounds, namely (1) the decision itself was so unreasonable that no reasonable person or body could have made such a decision; (2) prior to the D hearings by the second respondent's Council and the Townships Board, the member of the Provincial Executive Committee charged with responsibility for local government affairs had granted an interview to representatives of the second and third respondents in the absence of representatives of the applicant; and two technical grounds, namely (3) the publications and notices in terms of ss 26 and 27 of the Ordinance were irregular and defective in two respects: (a) the first newspaper advertisements were published a day after the date of the first E publication in the Provincial Gazette; and (b) the advertisements and notices did not contain all the prescribed particulars; (4) the notice of the Administrator's approval of the amendment scheme published in terms of s 36 (1) was defective in that it referred to a non-existent erf, viz erf 924, and that mistake was not put right in the correction notice. It was contended on applicant's behalf on the first point that F no valid reasons had been put forward in support of the Township Board's recommendations and that there had therefore been no valid or proper recommendation to the Administrator in terms of s 34 (4) of the Ordinance. As regards the second point, the applicant contended that it was entitled to feel aggrieved because the interview had been held without its representatives being invited to be present. In regard to G the first technical objection it was accepted that the advertisements in the press in terms of s 26 (1) of the Ordinance appeared after the dates of the corresponding advertisements in the Provincial Gazette. In each case the advertisements stated that the particulars of the scheme would be open for inspection at the office of the clerk of the Council, Vereeniging, for a period of 'four weeks from the date of first publication of this notice, which is 10 September 1975'. It was also H stated that objections or representations should be lodged in writing within the same period. It was contended that the late publication of the press advertisements constituted an irregularity in that it led to the cutting down of the period available to the reader for making objections, if he wished to do so. Also, the notices published in the Provincial Gazette and the newspapers did not include certain particulars prescribed in the Second Schedule, nor was a similar notice, sent to owners of contiguous properties, in terms of the Third Schedule. The applicant contended that the relevant provisions of ss 26 and 27 read with those of regs 6 and 7 of the regulations made under the Ordinance and the Second and Third Schedules were peremptory. It

1982 (3) SA p168

was contended that the omission of the particulars mentioned above meant that the statutory provisions were not complied with and therefore there A was an irregularity of such a nature that the proceedings had to be invalidated and the decision of the Administrator had to be set aside. The respondents contended that while the requirement that notices had to be published informing the public that a scheme had been prepared and inviting objections to it was peremptory, the prescribed particulars were directory only and substantial compliance with the forms prescribed was sufficient. It was common cause that when the Administrator's Notice B was published there was no erf 924 in existence, so that where the notice spoke of 'rezoning of erf 924' it was unintelligible. However, map 3, to which reference was made in the notice, indicated clearly where the supposed erf was located. Although erf 924 was not in existence at the date of the Administrator's Notice 1723, it was in the process of coming into existence. The question was whether or not there had been sufficient compliance with the provisions of s 26 (1). C Incorrect numbers of the stands had also appeared in the notice of the Administrator's approval of the scheme published under s 26 (1). However, a correction notice was published later. Applicant contended that the Administrator's approval of the amendment scheme was a nullity because he had approved the scheme in respect of stands other than those in respect of which the application had been made, or alternatively, because he had not applied his mind to the question.

D Held, that, on the first point, the alleged unreasonableness had to be so gross that the decision was inexplicable except on the assumption of mala fides or ulterior motive or that the Administrator did not apply his mind to the matter.

Held, further, on the facts, that the applicant had not discharged the onus resting upon it to show that such conduct was unreasonable.

E Held, further, that all s 34 (4) required was that the Townships Board should report to the Administrator and make its recommendations as to whether approval should be granted or refused, and that it did not specifically require that the recommendations should be supported by reasons.

Held, therefore, that, even if it was assumed that the reasons were not good reasons, that did not affect the matter and did not lead to the F inference that the Executive Committee did not apply its mind to the question at issue merely because it accepted the Town Board's recommendations.

Held, therefore, that the giving of unimpressive reasons did not amount to an irregularity.

Held, therefore, that the Townships Board had not failed in its duty to make a recommendation to the Administrator.

G Held, further, that, in regard to the second point, the test was whether a right thinking person would suspect as a result...