Reportable:                                 YES / NO
Circulate to Judges:                      YES / NO
Circulate to Magistrates:               YES / NO	
                                           
IN THE HIGH COURT OF SOUTH AFRICA
                    NORTHERN CAPE DIVISION, KIMBERLEY			                      					Case number: JA 78/10
Case No: 1045/2016
							Heard on:	15/05/2017									Delivered on: 26/05/2017
	
In the matter between:

EMTHANJENI LOCAL MUNICIPALITY				Applicant

And

THE MEMBER OF THE EXECUTIVE COUNCIL:			1st Respondent  
DEPARTMENT OF CO-OPERATIVE GOVERNANCE, 
HUMAN SETTLEMENTS AND TRADITIONAL AFFAIRS –
NORTHERN CAPE PROVINCE
THE NORTHERN CAPE DEVELOPMENT APPEAL			2nd Respondent
RAYMOND SWENSON							3rd Respondent

Coram:  Mamosebo J et Ndlokovane AJ
					
JUDGMENT ON REVIEW
MAMOSEBO J

	Introduction
[1]	The applicant (the Municipality) seeks from this court an order in which we find that the process followed and the decision taken by the second respondent, the Northern Cape Development Appeal Tribunal (NC/DAT), on 29 September 2015 was unconstitutional and that it be reviewed and set aside; a cost order against the respondents opposing the application; and condonation for the non-adherence to time limits prescribed in s 7(1) of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA).

	The parties
[2]	The applicant, the Emthajeni Local Municipality, is a local government authority located in the Northern Cape Province (the Municipality). The first respondent is the Member of the Executive Council (the MEC): Department of Co-operative Governance, Human Settlements and Traditional Affairs, Northern Cape Province. The second respondent is the Northern Cape Development Appeal Tribunal and the third respondent is Mr Raymond Swenson a resident and property owner in De Aar.  

[3]	The MEC and NC/DAT, represented by the State Attorney, had filed a Notice of Intention to Oppose the application dated 20 June 2016. However, on 17 January 2017 they withdrew the notice and filed a Notice to Abide the decision of this Court.

[4]	The Municipality had issued a Notice in terms of Rule 16A of the Uniform Rules of Court inviting any interested party to apply to Court to be admitted amicus curiae. The Rule 16A Notice was served by the sheriff on all the respondents. Ultimately, none accepted the invitation. The application proceeded unopposed.

	Condonation
[5]	The municipality asked for condonation for a minimal period of 6 weeks. The explanation is adequate. The condonation is granted.  See Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-F.

	The issue
[6]	The question that falls for determination is whether the NC/DAT had authority to intervene on appeal and make the decision reached on 29 September 2015 in respect of municipal land-use.

	Factual background
[7]	A historical background to the facts is necessary. Mr Isak Visser is the applicant’s Municipal Manager and deposed to the founding affidavit. The Municipality is the registered owner of the Remaining Extent of Erf 259, De Aar, held under Deed of Title T7448/1961 (the immovable property). During October 2011 the Municipal council resolved to apply for the rezoning and subdivision of the said immovable property in terms of the Northern Cape Planning and Development Act, 7 of 1998. The Municipality sought to establish up to 350 residential Zone 1 erven with complimentary Business Zone 1, Open Space Zone 1, Institutional Zone 1, Institutional Zone 2 and Transport Zone 2 erven. 

[8]	A company known as Townscape Planning Solutions (Townscape) was 	mandated to see to the processes of rezoning and subdivision of the said 	property on 	behalf of the applicant. They, inter alia, compiled reports, 	published notices and made recommendations to the municipality in 	respect of the proposed development and motivated that the subdivision 	application be encouraged and approved. 

[9]	Interested parties were notified of the rezoning and subdivision 	application. The third respondent, Mr Raymond Swenson, together with 	other individuals, objected to the rezoning and subdivision. Mr Swenson 	wrote a letter dated 17 April 2014 addressed to the deponent. The letter 	reads:	
	“Your recent advertisement in the De Aar Echo and the letter from 	Townscape Planning Solutions dated 28 March 2014 refers.
	I hereby object, in my capacity as owner of a residential property namely 	Erf 3953 situated on the corner of Grundlingh and Noord Streets De Aar, 	against your above application on the following grounds:
1.	When I bought my property in 2002 the unobstructed view towards Renosterberg over the open Karoo veld as well as the general good upmarket quality of neighbouring properties were primary considerations in coming to my decision to buy this property. I knew that Erf 259 was not zoned for residential purposes and that no danger therefore existed that my view could change or be obstructed or that any additional noise, air or sound pollution could be caused by any nearby residential (or industrial) development.
2.	It is my considered opinion that your proposed development of a housing project as the stated purpose of the rezoning sub-division of Erf 259, De Aar will substantially reduce the value of my above property.
3.	I would like to draw your attention to the Constitutional Court decision (Van Wyk 2012:176 -177; 389) where the Court set aside the decision by a Council to approve building plans without consideration to the influence of such a decision on the valuation of surrounding properties. I urge your Council to seriously consider the wisdom and potential cost implications, should your Council decide to approve this application.
4.	It is almost certain to be challenged in court.
5.	Kindly inform me without delay if and when council decides to either uphold or reject my objection.”

[10]	The Municipal Manager gave Mr Swenson feedback by letter dated 13 	November 2014, almost seven months later, and to all other people 	from whom objections were received.  Not only does the letter explain 	the recommendations made and reasons therefor but it also addresses the 	objections he raised as follows:
	“At a meeting of the Executive Committee on 06 November 2014, the 	Council approved the abovementioned rezoning and subdivision 	(Reference No UK 11 A(3) dated 06 November 2014).
	This area (Erf: a Portion of the Remainder of Erf 259, De Aar) was 	already identified as an area for future residential development in the 	Spatial Development Framework of Emthanjeni Local Municipality of 	2007.
	The location and the topography of this area is of such a nature that it is 	centrally situated for linking to all municipal main services and is very 	suitable for the purposes for which is to be used.
	The following feedback is provided regarding your objections:
	1.	[Objection]: The proposed development of a housing project as the 		stated [reason for] the rezoning and sub-division of Erf 259, De 		Aar will substantially reduce the market value of our property and 		thereby cause substantial financial loss.
		[Response]: The proposed development is residential in nature. 		The 2007 SDF earmarked the Remainder of Erf 259 for residential 		development. The layout provides for medium income stands for 		integration between the two areas ensuring a gradual transfer from 		high to medium to low income stands. It is unknown what the effect 		of the sub-economic development will be on the existing 				development. Intervention from institutions such as NGO’s can be 		initiated to promote skills development, job creation and a higher 		living 	standard.
	2.	[Objection]: The noise levels at the proposed housing 				development site on Erf 259, De Aar originating from the main 			railway line from Johannesburg to Cape Town and from the 			Northern Cape Mines to Coega harbour (Port Elizabeth) that 			passes in very close proximity to the proposed housing 				development pose a serious health risk to the poor economically 		disadvantaged people who are targeted to inhabit the development.
		[Response]: The standard prescribed distance is maintained in the 		proposed layout from the railway line and the servitude of the 			power supply lines. Measures to ensure the safety of future 			residents should be put in place.
	3.	[Objection]: We believe that the development, which will take 			place in close proximity to one of the main entrances of our town, 		will be detrimental to the tourism potential of our town and will 		therefore detract from business development and job creation in 		our town.
		[Response]: It is unknown what the impact of the proposed 			development will be on tourism. Community upliftment projects 			should be initiated by the local NGO’s and institutions.
	4.	[Objection]: We are concerned about the safety implications 			for future residents of the proposed development as they have to 		cross the R48, a main road, to get into town.
		[Response]: The Traffic Impact Assessment recommended that 			sidewalks be provided along major internal roads of the proposed 		development, especially along Cilliers Street extension access 			road. A hard surfaced sidewalk should be provided along the 			northern side of the R48 to link the development to the existing 			sidewalks along Voortrekker Street. Sufficient street lighting 			should also 	be provided within the development and at both 			accesses. It is recommended that a formal public transport facility 		should be provided within the development site.
		Should you wish to appeal against the Council resolution it must be 		done 	within 21 days of the date of this letter and addressed to: 			Chairperson Development and Appeal Tribunal”. 
	The letter ends with a request for a copy to be furnished to the Municipal 	Manager at a given address.

[11]	The Municipality was required to obtain approval of the Environmental 	Authorisation in terms of the Environmental Impact Assessment 	Regulations, issued in terms of the National Environmental Management 	Act, 107 of 1998. The approval was granted on 09 September 2014. 	Regulation 10(2) of the Environmental Impact Assessment Regulations, 	2010 	required the Municipality, in writing, and within 12 calendar days 	of the date of the decision, to notify all registered interested and affected 	parties of the department’s decision as well as provision for lodging of 	appeals.  

[12]	Before the Municipality obtained the approval of the Environmental 	Authorisation and on 02 September 2014, seven (7) days before such 	approval was granted, the Executive Committee of the Council approved 	the application for the rezoning and subdivision and also resolved that the 	imposed restrictions be removed from the title deed. The Municipality 	notified Mr 	Swenson of the Council resolution on 13 November 2014.

[13]	 It is on the basis of the failure by the Municipality to notify all interested and affected parties in terms of the aforementioned Regulation 10(2) that prompted Mr Swenson to lodge a Notice of Appeal with the Member of the Executive Council, Ministry of Environment and Nature Conservation dated 15 December 2014 in terms of Chapter 7 of the Environmental Impact Assessment Regulations, 2010.  This is the essence of Swenson’s appeal:
	“Emthanjeni Municipality failed to notify me as a registered, interested and affected party as required by regulation 10(2) of the Environmental Impact Assessment Regulations, 2010 within the required time (12 calendar days) after receiving your letter of authorisation. This, in my opinion, nullifies the authorisation as I was denied proper notification as required by me to respond within the prescribed timeframe. If Emthanjeni Municipality disputes this I would like to receive written representation from them, setting out grounds upon which my claim is disputed. I hereby further reserve the right to future appeal once I have been properly notified of the granting of Environmental Authorisation as set out above.”

[14]	Mr Swenson also lodged an appeal with the NC/DAT as advised to do 	within the 21 day period. The appeal was heard on 29 September 2015.  	At the appeal hearing the Municipality relied on the Constitutional 	Court 	judgment in Minister of Local Government, Environmental 	Affairs and 	Development Planning, Western Cape v  Habitat Council 	and 	Others 2014 (4) SA 437 (CC)  and raised several points in limine, 	inter alia, lack of authority by the NC/DAT to hear the appeal.  I deal 	with the Constitutional Court judgment at para 16 infra.
	
 [15]	 The following are recorded as the findings of the NC/DAT:
	“The Tribunal found that Emthanjeni Municipality did not effectively 	perform their functions in that they pre-emptively resolved on the matter 	before the Environmental Authorisation appeal process was completed. 	Therefore,  based on conditions 23 – 25 of the Environmental 	Authorisation, the failure of Emthanjeni Municipality (as holder of the 	authorisation) to timeously notify every registered interested and affected 	party (inter alia the appellant [Mr Swenson] and the fact that the appeal 	against the Environmental Authorisation has not been finalized as yet, the 	proposed rezoning and sub-division, as well as the removal of restrictive 	conditions of a portion and the remainder of Erf 259, De Aar is referred 	back to Emthanjeni Municipality for re-consideration AFTER 	completion of Environmental Authorisation appeal process.”

 [16]	 In the Habitat case (supra) at 445B – E (para 12) the remarks by 	Cameron JA are instructive: 
	“[12] That constitutional vision of robust municipal powers has been 	expanded in the jurisprudence of this Court, and succinctly summarised 	by Mhlantla AJ in Lagoonbay[Minister of Local Government, Western 	Cape v Lagoonbay Lifestyle Estate (Pty) Ltd and Others 2014 (1) SA 521 	(CC)]:
	“This Court’s jurisprudence quite clearly establishes that: (a) barring 	exceptional circumstances, national and provincial spheres are not 	entitled to usurp the functions of local government; (b) the constitutional 	vision of autonomous spheres of government must be preserved; (c) while 	the Constitution confers planning responsibilities on each of the spheres 	of government, those are different planning responsibilities, based on 	‘what is appropriate to each sphere’; (d) ‘“planning” in the context of 	municipal affairs is a term which has assumed a particular, well-	established meaning which includes the zoning of land and the 	establishment of townships’; and (e) the provincial competence for 	‘urban and rural development’ is not wide enough to include powers that 	form part of ‘municipal planning’.”

	 Justice Cameron continued at para 13 as follows:

	“[13] This Court in Lagoonbay concluded, without deciding, that ‘[a]t 	the very least there is therefore a strong case’ for holding that it is 	constitutionally impermissible for the Province to refuse rezoning and 	subdivision applications under LUPO. That strong case must be given 	effect here. Section 44 of LUPO does not withstand constitutional 	scrutiny. This is for all the reasons the Lagoonbay synopsis sets out. The 	provincial appellate capability impermissibly usurps the power of local 	authorities to manage “municipal planning”, intrudes on the autonomous 	sphere of authority the Constitution accords to municipalities, and fails to 	recognise the distinctiveness of the municipal sphere. This is because, as 	Jafta J said in Gauteng Development Tribunal[Johannesburg 	Metropolitan Municipality v Gauteng Development Tribunal and Others 	2010 (6) SA 182 (CC) in paras 49 -57], the planning competence that the 	Constitution ascribes to municipalities “includes the zoning of land and 	the establishment of townships”. So the Provincial Minister was correct 	to concede that section 44’s general appellate power is unconstitutional. 	Municipalities are responsible for zoning and subdivision decisions, 	and provinces are not.”  (Own emphasis)
	
[17]	 First and foremost the reasons for Mr Swenson’s objection to the rezoning and subdivision of the remainder of Erf 259 gave rise to the appeal and the decision that resulted in the subject matter of this review. The Constitution of the Republic of South Africa is the supreme law against which all laws and conduct is tested. Mr Swenson says the Municipality should not rezone and subdivide the available land to establish, among others, the proposed residential property because not only will his view of the Renosterberg Mountain be obstructed or obscured but the value of his property will be diminished. He says his decision to acquire the property where he is currently settled was made way back in 2002 and was informed by the fact that there would not be any development or sound pollution that will disturb his tranquillity.  He certainly has not taken account that the population of any municipality grows rapidly (the urbanisation) and the planning by each municipality must keep pace with its socio-economic challenges as well as the constitutional imperatives.

[18]	The Municipality is further enjoined by the Constitution in s 26 to provide housing. The section stipulates:
	“Housing – (1) Everyone has the right to have access to adequate 	housing.
	(2)	The state must take reasonable legislative and other measures, 	within its available resources, to achieve the progressive 	realisation of this right.”

[19]	Yacoob J writing for the unanimous court in Government of the Republic of South Africa v Grootboom and Others  2001 (1) SA 46 (CC) at 83E – F (para 82)  pronounced:
	“All levels of government must ensure that the housing program is reasonably and appropriately implemented in the light of all provisions in the Constitution. All implementation mechanisms and all State action in relation to housing falls to be assessed against the requirements of s 26 of the Constitution. Every step at every level of government must be consistent with the constitutional obligation to take reasonable measures to provide adequate housing.” 

[20]	It is common cause that the Council of the Municipality approved the application to rezone and subdivide the Erf in question on 02 September 2014 whereas the Environmental Authorisation was only granted on 09 September 2014, a period of 7 days preceding the authorisation date. Mr Swenson claims that because the Municipality failed to notify him of the approved authorisation it must be nullified. The Appeal Tribunal, pursuant to the appeal by Mr Swenson, decided on 25 September 2014 that the proposed rezoning and sub-division, as well as the removal of restrictive conditions of the  remainder  of  Erf  259,  De Aar,  be  referred back to Emthanjeni Municipality for re-consideration AFTER completion of the Environmental Authorisation appeal process. It is this decision by the Appeal Tribunal that we need to determine whether the Tribunal had the requisite authority to make that decision. In my view, because the Environmental Authorisation has already been granted I do not think it would serve any useful purpose to refer the matter back to the Municipality for re-consideration.

[21]	It is not contended that the decision itself by the Municipal Council, the substance thereof, was not properly taken. It is the precipitate decision (the 7 days early), the form thereof, that the objection relate to. There is no suggestion that a different outcome is anticipated or the most probable outcome would be different. Ideally, the Municipality ought to have waited for the environmental authorisation before approving the application. It also ought to have notified interested and affected parties. It is my view, nevertheless, that those shortcomings by the municipality, viewed holistically and in the spirit and purport of the constitution are not sufficiently material to nullify the authorisation already granted.  The guise of objecting to the fact that his view (the panorama) being obscured by the proposed development may have to do with a deeper but inarticulate motive to frustrate the integration of a diversity of communities, which act is selfish. 

[22]	The applicant’s counsel submitted that since the first and second respondents had filed the notice to abide the decision of this court having initially filed the notice of intention to oppose the matter, she will not ask for an order for costs against them. The third respondent, Mr Swenson, did not oppose the application.

[23]	It is in the light of the aforementioned instructive views by the Constitutional Court and the provisions in the Constitution referred to hereinbefore that the decision taken by the Northern Cape Development Appeal on 29 September 2015 is found to be unconstitutional and must be reviewed and set aside.

[24]	In the result, the following order is made:

	It is ordered: 
1.	The application for condonation is granted.
2.	The process followed by the second respondent, The Northern Cape Development Appeal, and the decision taken on 29 September 2015 in which it decided to refer the decision for the proposed rezoning and sub-division and the removal of restrictive conditions of the remainder of Erf 259, De Aar, back to the Emthanjeni Municipality for reconsideration is hereby declared unconstitutional and reviewed and set aside.
3.	There is no order as to costs.

_____________________
MAMOSEBO J
NORTHERN CAPE DIVISION

I concur

____________________
NDLOKOVANE AJ
NORTHERN CAPE DIVISION

For the applicant:			Adv A Stanton
Instructed by:			Du Toit & De Beer Attorneys
For the 1st and 2nd respondents:	No appearence
 Instructed by:			Office of the State Attorney
For the 3rd respondent:		No appearence