The Administrator, Transvaal and the Firs Investments (Pty) Ltd v Johannesburg City Council

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson JA, Holmes JA, Jansen JA, Trollip JA and Muller AJA
• Judgment Date: 01 October 1970
• Citation: 1971 (1) SA 56 (A)
• Court: Appellate Division

Ogilvie Thompson, J.A.:

The two appellants appeal, with the written consent of all parties given in terms of sec. 20 (3) of the Supreme Court Act, 59 of 1959, direct to this Court against the order, made by MARAIS, J., in motion proceedings launched B in the Transvaal Provincial Division by the present respondent against the present two appellants, setting aside first appellant's decision

"in refusing to re-zone stand 5 and the remaining extent of stand 30, Rosebank, District of Johannesburg, from 'general

business' to 'general residential'",

and directing first appellant

C "to approve of the amendment town-planning scheme No. 1/260 of the City of Johannesburg".

Second appellant, hereinafter called "the Firs Company", also appeals against the order of the Court a quo directing it to pay the costs of the present respondent, to whom I shall refer as "the City Council". In referring to the first appellant as "the Administrator" I throughout do so, unless the context indicates otherwise, as designating the holder of that office D acting on the advice and with the consent of the Executive Committee of the Transvaal Province (see sec. 1 of Ord. 25 of 1965 (T)). Although not formally cited in these proceedings, the Executive Committee has intimated that it will abide any final judgment herein. The "Director" referred to in this judgment is the Director as defined in sec. 1 of Ord. 25 of E 1965 (T) - that is to say the Director of Local Government appointed in terms of sec. 9 of Ord. 21 of 1958 (T). All references to "the Townships Board", or, more briefly, to "the Board" relate to the body established under the provisions of Chap. I of Ord. 25 of 1965 (T).

The judgment of the court a quo - which is to be found reported at 1970 (2) SA 102 - contains a fairly full F statement of the facts. I shall accordingly endeavour, as far as practicable, to avoid repeating those facts; but a proper appreciation of the issues raised before us on appeal renders some repetition of factual matter unavoidable. For the moment, however, it suffices to say that the two stands mentioned in the above-cited order of the Court a quo are registered in the G name of the Firs Company and are situated in Rosebank, a preponderantly residential and select suburb of Johannesburg. The eastern boundary of stand 5 abuts upon Oxford Road, an important artery which, running roughly from south to north, carries a considerable volume of traffic. The remaining extent of stand 30 (hereinafter referred to as "stand 30 R.E.") adjoins stand 5 on the latter's western boundary. The southern H boundary of these two stands constitutes the northern boundary of the Rosebank shopping centre - comprising business premises and ancillary parking areas - which is more fully described at pp. 103F et seq. of the above-mentioned report. Under the City Council's original town-planning scheme, stands 5 and 30 R.E. were respectively zoned for "general residential" and "special residential" purposes. After the Firs Company had acquired ownership of these stands in January, 1964, it applied,

Ogilvie Thompson JA

during May, 1964, to the City Council to have both stands re-zoned to "general business". As it had done in the case of similar applications by prior owners of these stands, the City Council refused the application of the Firs Company. The A latter, however, successfully appealed under the provisions of the then Town-planning Ordinance, 11 of 1931, and, despite the City Council's objections, ultimately, on 3rd August, 1966, obtained from the Administrator the desired re-zoning to "general business". The relevant amendment scheme was No. 1/188. Thereafter the City Council initiated, under the B provisions of the Town-planning and Townships Ordinance, 25 of 1965 (T) (hereinafter called "the Ordinance"), which had in the meantime repealed Ord. 11 of 1931, an amendment scheme having as its objective the re-zoning of the above-mentioned two stands to "general residential". This scheme (No. 1/260) was ultimately rejected by the Administrator, acting under sec. 35 (1) of the Ordinance, during November, 1968. It is that C rejection which constitutes the subject of the present litigation.

In this Court it was submitted on behalf of the Firs Company that the challenged decision of the Administrator is not reviewable on the grounds advanced. It was urged upon us that the creation of a town-planning scheme under the Ordinance is a D composite legislative process in which the local authority, the Townships Board, and the Administrator all play their part and that, consequently, the City Council has no sufficient right to challenge the Administrator's decision in issue either at all or, at any rate, without also citing the Townships Board. Counsel for the Administrator associated himself with this submission without, however, advancing any additional E argument in its support. Substantially the same submission was rejected by MARAIS, J., (vide pp. 111F - 116F of the report in 1970 (2) S.A.). I say "substantially' primarily because counsel for the Firs Company very fairly conceded that in the Court below he may have omitted expressly to raise the question of the non-joinder of the Townships Board.

F Town-planning schemes, as distinct from the establishment and administration of townships which fall under Chap. III, are dealt with in Chap. II of the Ordinance. Sec. 17 provides:

"(1)

For the purposes of this Chapter, a town-planning scheme shall have for its general purpose a co-ordinated and harmonious development of the area to which it relates in such a way as will most effectively tend to promote health, safety, good G order, amenity, convenience and general welfare as well as efficiency and economy in the process of such development and such a scheme may include any replanning or re-development of such area.

(2)

In the preparation of a town-planning scheme under this Chapter, due consideration shall be given to the matters referred to in the First Schedule to this Ordinance.

(3)

H The provisions of sub-secs. (1) and (2) shall not be construed as in any way limiting the meaning of the expression town-planning when used in this Ordinance."

The First Schedule referred to in sub-sec. (2) above lists a great variety of matters to be considered in the preparation of a town-planning scheme - many of which items, e.g. streets, in all their manifold aspects, and the regulation of buildings, normally fall under municipal control - and concludes by comprehensively including in the Schedule

"any other matter reasonably incidental to the purpose of this Ordinance".

Sec. 18 (1) of the Ordinance provides that:

Ogilvie Thompson JA

"A local authority may on its own initiative or shall, if so required by the Administrator, prepare and submit to the Director, within such time as the Administrator may stipulate and in accordance with the provisions of this Chapter, a town-planning scheme in respect of all or any land situated within the municipality and, with the consent of or if required by the Administrator, specified land outside such municipality."

The first scheme of a local authority is called an original A scheme (sec. 18 (2)); the scheme which is an amendment or extension of an original scheme is known as an amendment scheme (sec. 18 (3)), and in terms of sec. 18 (4) the designation "scheme in operation" denotes an original scheme together with such amendment schemes relating thereto as are in operation at B any particular point of time.

When a local authority intends to prepare and submit a town-planning scheme as contemplated in sec. 18 of the Ordinance, it must publish the notice prescribed by sec. 25. That done, and having prepared its scheme - known as a draft scheme - the advertisement prescribed by sec. 26 must be published stating, inter alia, that the draft scheme will be open for inspection at a specific place and that objections C thereto may be lodged. Further notice may be required in terms of sec. 27. Section 28 states who may lodge objections to the draft scheme. In terms of sec. 29, a hearing, open to the public, takes place whereat objections or representations are advanced. After consideration of these, the local authority D "shall either reject or adopt" the draft scheme, with or without amendment (sec. 29 (6)). The draft scheme as so adopted is thenceforward known as an interim scheme (sec. 29 (7)). Sec. 29 (8) provides:

"The local authority concerned shall forthwith submit its interim scheme and a copy of any objection or representations referred to in sub-sec. (6) to the Director, together with such E other documents, information and fees as may be prescribed."

In terms of sec. 31, the Director, upon receipt of any interim scheme, refers it to the Board and - subject to a proviso immaterial to this case - publishes the notice prescribed by that section that an interim scheme has been submitted, that it will be open for inspection, and that "any objection or representations with regard thereto" must be submitted in F writing within a stated period. Sec. 32 lays down who may object or make representations.

In terms of sec. 33, the Board, after giving the notice required by sub-sec. (2) of that section, hears objections and representations. Such hearing is open to the public and it is specially provided (see the concluding words of sec. 33 (4)) G that at the hearing

"the local authority which has prepared the interim scheme shall be afforded an opportunity of stating its case".

Sec. 34 (1) provides that, after the conclusion of the hearing prescribed by sec. 33, the Board must consider the scheme together with all the objections and representations which have been brought to its notice. In terms of sec. 34 (2) the Board H may, whenever it deems it expedient to do so,

"make any inspection or investigation and request any person...