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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

                                                                                    CASE NO: 3871/2013

                                                                                    DATE HEARD: 17/04/2014

                                                                                    DATE DELIVERED: 24/04/2014

NOT REPORTABLE

In the matter between:

PEELTON HOUSING DEVELOPMENT

PROJECT WARD – 43                                                                                           APPLICANT

and

BUFFALO CITY METRO MUNICIPALITY                                                         RESPONDENT

 

Administrative law – application in terms of s 6(2)(g), read with s 6(3)(a), of the Promotion of Administrative Justice Act 3 of 2000 – mandamus sought to remedy alleged failure to take a decision – respondent had taken a decision – application dismissed with costs.

JUDGMENT

PLASKET J

[1] The applicant, the Peelton Housing Development Project Ward – 43, has brought this application for an order directing the respondent, the Buffalo City Metro Municipality, to take a decision on an application submitted by it. 

[2] The founding affidavit defines the applicant’s cause of action, with reference to s 6 of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA), as being that the respondent ‘has committed an unjust administrative act by its failure to take a decision on the application submitted to it by the Applicant for processing’. This is clearly a reference to s 6(2)(g), read with s 6(3)(a), of the PAJA. The former is to the effect that a court may ‘judicially review an administrative action’ if ‘the action concerned consists of a failure to take a decision’. Section 6(3)(a) provides:

‘If any person relies on the ground of review referred to in subsection (2)(g), he or she may in respect of a failure to take a decision, where-

(a)        (i)   an administrator has a duty to take a decision;

            (ii)   there is no law that prescribes a period within which the administrator is required to take that decision; and

           (iii)   the administrator has failed to take that decision, institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has been unreasonable delay in taking the decision.’

[3] The applicant was formed by residents of Ward 43, Peelton to facilitate the provision of adequate housing for people in that area. To this end it drafted a document in which it set out its plans to do so. It claimed to be doing this in terms of a policy contained in the National Housing Code called the Enhanced People’s Housing Process (EPHP) and it went so far as to enter into a contract with a developer. 

[4] By letter dated 27 September 2012 the applicant’s project manager wrote to Ms S Mgezi, the Portfolio Head: Human Settlements in the respondent. This letter stated inter alia:

‘On behalf of the above named Project, I hereby write to you, to urgently consider the inclusion or entering of Peelton Housing Development Project into Buffalo City Metro (BCM) Integrated Development Plan (IDP) in the City Council. 

By entering/including our project in your Council’s IDP, we hope and wish to get planning assistance from the BCM’s – Funding – Planning.  The project intends to build/construct houses for Peelton beneficials.  See as per attached Executive Summary report, refers. The Funding Planning will be used in Geotechnal (sic) Investigations, Beneficials verification/screening, Architectural Design Planning etc. 

Kindly please advise us if there’s any additional information/details that your office may need for urgently processing our application.  Hoping that you would understand that the Housing issue, is the most serious urgent need in our poverty stricken communities.’

[5] The executive summary referred to makes it clear that the applicant planned to ‘appoint and assemble a team of building professionals and or company to undertake or perform the required functions of building construction’. Later in the document, it is stated that a developer had already been appointed to ‘oversee and build the houses for the approved beneficial/s’.

[6] When no response to this letter was forthcoming, a complaint was lodged with the mayor of the respondent. This had the effect of eliciting a letter from Mgezi. She wrote:

‘My office has gone through the contents of this correspondence and resolved that it would be prudent of us to respond and clarify the fact that BCMM is a developer in this project  and it has not entered into agreement with any service provider.’

[7] The applicant then complained to the municipal manager of the respondent that the applicant strongly opposed and rejected ‘the imposition of BCMM as a developer in our project’. Mgezi wrote a second letter to the applicant in which she stated:

‘Kindly be informed that application for a PHP is channelled through the province, which is situated at Chiselhurst, who are the custodians of the housing process.’

[8] Finally, to put matters beyond doubt, the respondent advertised a tender for a ‘professional team for design and project management services for Drayini, Esxekweni, KwaTrain, Nkqonkqweni, Majali and Mdange Rural Housing Project 2174 units.’ Included in the areas covered by the tender is Ward 43. 

[9] A number of points were taken in limine by the respondent. Wisely, all but one were not persisted with when the matter was argued. I shall not deal with them for that reason save to say that none have merit. 

[10] The only point in limine that was argued by Mr Poswa, who appeared for the respondent, was that the applicant has not exhausted its internal remedies, as required by the s 7(2) of the PAJA, thus precluding me from dealing with this matter. This section provides:

‘(2) (a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.

(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.

(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.’

[11] Mr Poswa, who appeared for the respondent, pointed to s 62 of the Local Government: Municipal Structures Act 32 of 2000 as the internal remedy that the applicant has failed to exhaust. This section grants an internal appeal to the municipal manager of a municipality to a person ‘whose rights are affected by a decision taken by’ various municipal functionaries.

[12] In this case, the applicant’s complaint – and I shall deal with this aspect next –is that no decision was taken by the municipality. Consequently, there was nothing to take on internal appeal. Section 7(2) does not apply and the point has no merit. 

[13] I turn now to the merits. It is clear from the two letters written by Mgezi to the applicant that a decision was taken. The decision was that the applicant’s plan for the development of its area was not acceptable to the respondent because the respondent planned to be the developer and construct houses in the area itself. If there was any doubt that this decision had been taken that should have been dispelled by the advertising of the tender.

[14] Evidently, this was not a decision to the liking of the applicant, but it too appears to have accepted that a decision had been taken. This much emerges from a letter that its attorney wrote to the respondent, copied to the Premier of the province and two of her MEC’s, in which he stated, in the context of the history of the matter:

‘Another letter complaining about this lack of response was despatched to the City Manager of BCMM on 3 May 2013. This letter appears to have elicited some response from Mgezi who, by letter dated 7 May 2013 informed Peelton that “BCMM {was} a developer in this project”. This decision was reached without consultation with Peelton or the community.

Makwela thereafter wrote a letter to Mgezi dated 21 May 2013 in which he explains, inter alia, that a community seeking assistance in terms of the EPHP guidelines makes its own decisions regarding the appointment of a service provider and a municipality cannot, as the BCMM purports to do in this instance, appoint itself as the service provider. It was pointed out to Mgezi that Peelton had already appointed Siphukhanyo as the service provider.

. . .

On 3 June Peelton wrote to the MEC for Human Settlements: Eastern Cape pointing out to her that BCMM had no authority to undertake EPHP projects and appealing to her to intervene. Some meetings followed with officials from the MEC’s office and the consensus was that BCMM did not have the right to act in [the] manner it did.’

[15] The regularity of the decision itself is not before me because it has not been taken on review by the applicant. As a decision has been taken, the applicant is, self-evidently, not entitled to the mandamus that it sought to compel the taking of the decision.

[16] The application is dismissed with costs. 

_________________________

C Plasket

Judge of the High Court

APPEARANCES

For the applicant: F L Nkombi, instructed by Yeko Attorneys

For the respondent: S G Poswa, instructed by Netteltons

 

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