THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 873/11

In the matter between:

JDJ Properties CC
First Appellant

Double Diamond CC
Second Appellant

and

Umngeni Local Municipality
First Respondent

Triumph Brokers (Pty) Ltd
Second Respondent

Neutral citation:
JDJ Properties v Umngeni Local Municipality (873/11) [2012]
ZASCA 186 (29 November 2012)

Coram:
LEWIS, HEHER, THERON AND PILLAY JJA AND
PLASKET AJA

Heard:
08 November 2012

Delivered:
29 November 2012

Summary:
Promotion of Administrative Justice Act 3 of 2000 –
whether
decision
to
approve
building
plans
administrative action – standing of near-by landowner
and lessee of property to review decisions taken by
municipality in terms of town planning scheme –
whether internal appeal available in terms of s 62 of
Local Government: Municipal Systems Act 32 of 2000 or
s 9 of National Building Regulations and Building
Standards Act 103 of 1977 – review of decisions taken in
terms of town planning scheme and to approve building
plans.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: KwaZulu-Natal High Court, Pietermaritzburg (Seegobin J
sitting as court of first instance)
1 The appeal is upheld with costs.
2 The order of the court below is set aside and replaced with the following
order:
(a) The decision of the general manager: planning and development services
of the first respondent, purportedly taken in terms of clause 2.6.3 of the
Howick town planning scheme, relaxing the side space requirement in respect
of erf 848, Howick is set aside.
(b) The decision of the first respondent‟s council taken on 30 June 2010 to
approve the building plans submitted on behalf of the second respondent for
building work on erf 848, Howick is set aside.
(c) The respondents are directed, jointly and severally, to pay the applicant‟s
costs, including the costs of the application for interim relief.

JUDGMENT

PLASKET AJA (LEWIS AND PILLAY JJA concurring)
[1] This appeal, against a judgment of the KwaZulu-Natal High Court,
Pietermaritzburg (Seegobin J) concerns four issues: whether the approval of
the second respondent‟s building plans (including two related decisions to
relax side space and parking requirements) by the first respondent constitutes
administrative action as that term is defined in s 1 of the Promotion of
Administrative Justice Act 3 of 2000 (the PAJA); whether the appellants have
standing to review the decision to approve the building plans; whether the
appellants had available to them an internal appeal which they were required
to utilise before taking the decision on review; and whether, if the appellants
succeed in clearing all of these hurdles, they have established a basis for the

review and setting aside of the decision. The appeal is before this court with
the leave of the court below.

The facts

[2] The building plans in issue in this matter relate to erf 848 situated in the
central business district of the town of Howick. This property, zoned „General
Commercial‟, had been owned by the first respondent but, because it had
become a derelict eye-sore, a decision had been taken to sell it by public
tender with a view to it being redeveloped. The second respondent‟s tender
was accepted and a deed of sale was duly entered into by the first and
second respondents which included certain development requirements.

[3] Two of the development requirements warrant mention. First, clause
9.1 of the deed of sale records that the property is vacant land and that it is to
be „developed by the Purchaser as a commercial development‟. Secondly,
clause 9.5 provides that if the development of the property has not been
completed within 18 months of the signing of the deed of sale „the Seller may
cancel this agreement and obtain return of the Property, or may assess and
levy rates thereon as if the development had been concluded, at its sole
discretion‟.

[4] The second respondent planned to build a shopping complex on the
property and, to this end, entered into an agreement of lease with Basfour
3281 (Pty) Ltd in terms of which the property was let to Basfour for nine years
and 11 months at a monthly rental of R115 500. From the affidavit of Mr Ismail
Cassimjee, a director of the second respondent, it appears that the lessee‟s
plan was to utilise the property as a retail supermarket aimed at lower-income
earners.

[5] Because of the nature of the proposed supermarket‟s business, it
required, in the words of Cassimjee, „more building space and less parking on
the property‟ because the target clientele typically „do not usually have
vehicles to park outside the retail outlet‟. As a result of this, the second

respondent applied for the relaxation of the first respondent‟s usual parking
requirements in terms of the Howick Town Planning Scheme (the Howick
scheme). It also obtained the consent of the owners of an adjoining property,
and the approval of the first respondent, to waive the side space requirement,
thus allowing for the building on erf 848 to abut the neighbouring erf.
Throughout this process, the first and second respondents were in constant
contact, discussing and negotiating as the development progressed.

[6] Prior to concluding the lease agreement with Basfour, the second
respondent had, in March 2010, submitted its building plans to the first
respondent for approval in terms of the National Building Regulations and
Building Standards Act 103 of 1977. In May 2010, Mr Jordoa de Jesus, a
member of the first appellant and of the second appellant, both of which
carried on business in close proximity to erf 848, learned of the proposed
development. The first appellant owns two properties situated across the road
from erf 848 and the second appellant owns a retail business that operates
from those properties.

[7] De Jesus was most unhappy that the development was taking place at
all and was also alarmed to hear that the second respondent appeared to be
receiving favourable treatment from the first respondent. He registered his
concerns by way of a letter to Mr Stephen Simpson, the general manager,
planning and development services of the first respondent. He also instructed
an attorney, counsel and a town planner to oppose the second respondent‟s
application for the approval of the building plans. To this end, written
representations were made to the first respondent and he and his team
attended a meeting of the executive committee of the first respondent‟s
council, and of the council itself when the approval of the building plans was
considered and passed by the council.

[8] When the second respondent had received confirmation that its
building plans had been approved, it concluded the lease agreement with
Basfour and gave its building contractor the go-ahead to commence building
operations. The appellants launched an urgent application in which they

sought an interim order interdicting the second respondent from proceeding
with the building operations pending a review of the decision to approve the
building plans. The application for the interim interdict was dismissed but the
application to review the decision was postponed, with the costs reserved.

[9] The appellants later amended their notice of motion to include a further
ground of review and further relief relating to the demolition of part of the
building and the vacating of the property pending the issue of a new certificate
of occupancy by the first respondent.

[10] The court below dismissed the application with costs without deciding
on the merits. It found that: (a) the decision to approve the building plans was
not administrative action for purposes of the PAJA because the appellants
had not shown that the decision had adversely affected their rights and had a
direct, external legal effect, holding that „[o]n this basis alone the application
falls to be dismissed‟; (b) as it was unable to find that the primary aim of the
appellants in challenging the decision to approve the building plans was to
stifle competition, it was not able to find that they lacked standing on this
account; and (c) the appellants had available to them an internal appeal
against the decision that they challenged, they had failed to utilise it and, on
that account, the application had to be dismissed because s 7(2) of the PAJA
requires the exhaustion of internal remedies before parties may approach a
court to review administrative action. These findings will be dealt with in turn.

Administrative action

[11] Section 1 of the PAJA defines administrative action, subject to listed
exclusions that are not relevant for present purposes, as follows:
„”administrative action” means any decision taken, or any failure to take a decision,
by –
(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 or performing a public function in
terms of any legislation; or
(b)
a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms of an
empowering provision,
which adversely affects the rights of any person and which has a direct, external
legal effect . . .‟

[12] It does not appear to be in dispute that a decision, as envisaged by the
PAJA,1 was taken by the first respondent, that it is an organ of state as
defined in s 239 of the Constitution, that in taking the decision to approve the
building plans it exercised a public power and that this power derived from
legislation. The only two elements of the definition which are in dispute in this
matter are the requirements of an adverse effect on rights and direct, external
legal effect.

[13] In order to interpret the definition of administrative action in the PAJA
one must begin with s 33 of the Constitution.2 Because the PAJA is intended
to give effect to the fundamental right to just administrative action, it must be
interpreted consistently with s 33 and effect must be given to the purpose of s
33, namely the creation of „a coherent and overarching system for the review
of all administrative action‟.3 In Bato Star Fishing (Pty) Ltd v Minister of

1 A decision is defined in s 1 of the PAJA to be „any decision of an administrative nature
made . . . under an empowering provision, including a decision relating to . . . (b) giving,
suspending, revoking or refusing to give a certificate, direction, approval, consent or
permission‟.
2 Section 33 reads as follows:
„(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;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2);
and

(c) promote an efficient administration.‟
3 Minister of Health & another NO v New Clicks South Africa (Pty) Ltd & others (Treatment
Action Campaign & another as amici curiae) 2006 (2) SA 311 (CC) para 118 (Chaskalson CJ)
and para 446 (Ngcobo J); Camps Bay Ratepayers’ and Residents’ Association & another v
Harrison & another 2011 (4) SA 42 (CC) para 51.

Environmental Affairs & others4 O‟Regan J held that because the purpose of
the PAJA was to give effect to s 33, „matters relating to the interpretation and
application of PAJA will of course be constitutional matters‟. This means that
the PAJA should be interpreted generously and purposively and that austere
formalism in its interpretation should be avoided.5

[14] In Sokhela & others v MEC for Agriculture and Environmental Affairs
(KwaZulu-Natal) & others6 Wallis J summarised the proper approach to be
taken when he said:
„In my view, the intention of the Constitution was to draw together the disparate
threads of our administrative law, and the circumstances in which the power of
judicial review was available, under the umbrella of a single, broad concept of
administrative action. In accordance with the generous construction to be afforded
constitutionally guaranteed rights, conduct that attracted the power of judicial review
under our previous dispensation will ordinarily be regarded as constituting
administrative action under the present constitutional dispensation. There will of
course be exceptions arising from differences in the structure of government and the
status of differing levels of government . . . but, in general, it seems to me that, where
the power of judicial review was available under our previous dispensation, the courts
will be slow to construe that conduct as falling outside the ambit of administrative
action under the Constitution and PAJA.‟

[15] In Grey’s Marine Hout Bay (Pty) Ltd & others v Minister of Public Works
& others7 Nugent JA made the point that while the precise ambit of
administrative action has always been hard to define, „[t]he cumbersome
definition of that term in PAJA serves not so much to attribute meaning to the
term as to limit its meaning by surrounding it with a palisade of qualifications‟.8
At its core, however, is the „idea of action (a decision) “of an administrative
nature” taken by a public body or functionary‟. While indications of what is
intended may be derived from the qualifications to the definition, the term „also

4 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others 2004 (4) SA 490
(CC) para 25.
5 S v Zuma & others 1995 (2) SA 642 (CC) paras 14-15.
6 Sokhela & others v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) & others
2010 (5) SA 574 (KZP) para 82.
7 Grey’s Marine Hout Bay (Pty) Ltd & others v Minister of Public Works & others 2005 (6) SA
313 (SCA).
8 Para 21.

falls to be construed consistently, wherever possible, with the meaning that
has been attributed to administrative action as the term is used in s 33 of the
Constitution (from which PAJA originates) so as to avoid constitutional
invalidity‟.9

[16] After summarising the import of the more important cases on what
constituted administrative action in terms of s 24 of the interim Constitution
and s 33 of the final Constitution, he concluded that administrative action is „in
general terms, the conduct of the bureaucracy (whoever the bureaucratic
functionary might be) in carrying out the daily functions of the State, which
necessarily involves the application of policy, usually after its translation into
law, with direct and immediate consequences for individuals or groups of
individuals‟.10

[17] Nugent JA approached the interpretation of the two elements of the
definition with which this case is concerned – that rights must be adversely
affected, and that the action must have a direct, external legal effect – on the
basis that in ascribing a meaning to them that is consistent with the way in
which s 33 was interpreted their literal meaning could not have been
intended:11
„For administrative action to be characterised by its effect in particular cases (either
beneficial or adverse) seems to me to be paradoxical and also finds no support from
the construction that has until now been placed on s 33 of the Constitution.
Moreover, that literal construction would be inconsonant with s 3(1), which envisages
that administrative action might or might not affect rights adversely. The qualification,
particularly when seen in conjunction with the requirement that it must have a “direct
and external legal effect”, was probably intended rather to convey that administrative
action is action that has the capacity to affect legal rights, the two qualifications in

9 Para 22.
10 Para 24. See too Zondi v MEC for Traditional and Local Government Affairs & others 2005
(3) SA 589 (CC) paras 104-105; Johannesburg Municipal Pension Fund & others v City of
Johannesburg & others 2005 (6) SA 273 (W) para 14.
11 Para 23. Nugent JA‟s approach to the interpretation of the requirement of a direct, external
legal effect was endorsed by the Constitutional Court in Joseph & others v City of
Johannesburg & others 2010 (4) SA 55 (CC) para 27. See too Viking Pony Africa Pumps
(Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd & another 2011 (1) SA 327 (CC)
para 37.

tandem serving to emphasise that administrative action impacts directly and
immediately on individuals.‟

[18] In my view, the approval of the building plans in this case has such an
effect. As De Jesus has stated, the consequence will be an increase in traffic
using the road where both the second appellant‟s and first respondent‟s
businesses are located, with an increase in congestion. Because of the small
amount of parking authorised by the first respondent, it would inevitably follow
that the free parking provided by the second appellant to its customers would
be used by customers shopping at the second respondent‟s development.

[19] It was held by the court below that as the second appellant‟s and the
second respondent‟s client bases differed, and the latter‟s client base would
be poor people using public transport, these concerns were groundless. I do
not agree with this conclusion. The fact that the second respondent‟s client
base will, in the court below‟s words, mainly comprise of „the rural poor‟ will
mean that transport will be necessary to convey them from their homes to the
shopping complex. The vehicles concerned will increase traffic congestion in
the area concerned and will need somewhere to park. The second appellant‟s
parking area is nearby and convenient. It is probable that attempts will be
made to use it and the appellants will have to take steps to protect their right
to reserve the parking for their customers.

[20] The
court
below
categorised
these
consequences
as
trivial
inconveniences which were insufficiently serious to qualify as an adverse
effect on rights having a direct, external legal effect. In so doing, it
approached the issue in a narrow, legalistic manner rather than purposively
and in accordance with the interpretation of these requirements favoured by
Nugent JA in Grey’s Marine. It erred in this respect. In my view, the decision
to approve the building plans had the capacity to affect the rights of the
appellants and others living and doing business in the area concerned, and
would impact directly on them. That being so, all of the elements of
administrative action for purposes of the PAJA are present and the decision to
approve the building plans is therefore an administrative action.

[21] Furthermore, the appellants, as a landowner and lessee respectively in
the immediate vicinity of the development to which the building plans relate
have a right to enforce compliance with the Howick scheme. I shall expand on
this when I deal with the attack on the appellants‟ standing. Their right to
safeguard the amenity of their immediate neighbourhood was potentially
affected by the decision that they sought to impugn.12 That brings the decision
to approve the second respondent‟s building plans within the definition of
administrative action in the PAJA.

[22] In conclusion on the administrative action point, it has always been the
case that decisions of local authorities to approve building plans are subject to
administrative law review and nothing in the structures of government under
either the interim Constitution of 1993 or the final Constitution of 1996, the
status of local governments or the powers of local governments compels a
difference in this regard.13 Both pre- and post-1994 cases have regarded it as
trite that administrative law review applies to decisions to either approve or
refuse to approve building plans, whether under the common law, the
Constitution directly prior to 2000 (when the PAJA came into effect) or under
the PAJA thereafter. This is perhaps the reason why Jafta AJ, in Walele v City
of Cape Town & others,14 could assert with no resort to authority that „[t]here
can be no doubt that when approving building plans, a local authority or its
delegate exercises a public power constituting administrative action‟. That
puts paid to the first issue.

12 Esterhuyse v Jan Jooste Family Trust & another 1998 (4) SA 241(C) at 253J-254D.
13 Most of the cases cited in this judgment support this proposition. Writing in 1984 Lawrence
Baxter in Administrative Law at 173 described the town planning system as a „highly
sophisticated example of administrative regulation‟. Cases in which either the approval of
building plans or the refusal to approve building plans are challenged inevitably involve the
review of decisions of public functionaries or bodies on administrative law grounds. See for
instance BEF (Pty) Ltd Cape Town Municipality & others 1983 (2) SA 387 (C) at 400B-D
(approval of plans invalid because decision-maker acted in terms of a delegation of power
that was not authorised); Paola v Jeeva NO & others 2004 (1) SA 396 (SCA) para 16  and
Walele v City of Cape Town & others 2008 (6) SA 129 (CC) para 72 (decision taken in both
cases in the absence of jurisdictional facts invalid)  See too Camps Bay Residents’ and
Ratepayers’ Association & another v Harrison & another (note 3) paras 48-63 (application of
the time limit for instituting review proceedings in terms of the PAJA)
14 Walele v City of Cape Town & others 2008 (6) SA 129 (CC) para 27.

[23] Even if it is accepted that the decision to approve the second
respondent‟s building plans is not administrative action for purposes of the
PAJA, that would not mean that the decision is immune from review: it would
then be an exercise of public power that is reviewable in terms of s 1(c) of the
Constitution, the principle of legality and rationality15 -- and it would be
reviewable on essentially the same grounds as those set out in s 6(2) of the
PAJA. (In this case, where the attack on the decision is based on a lack of
authority and irrationality, the „gateway‟ to review – the PAJA or s 1(c) of the
Constitution – will make no difference to the result.16) It follows that the court
below erred in finding that the application had to be dismissed on the sole
ground that the decision under challenge was not administrative action.

Standing

[24] In the court below, the second respondent attacked the standing of the
appellants to review the decision to approve the building plans on the basis
that they did not have a sufficient interest as all they were seeking to do was
to improperly suppress trade competition. The court below did not accept this
argument but the attack on the appellants‟ standing was persisted in on
appeal but on a different basis: that the appellants, not having any rights that
had been adversely affected by the decision, had no standing to review the
first respondent‟s approval of the second respondent‟s building plans.

[25] What this argument sought to do was to conflate the alleged absence
of two of the elements of administrative action, as defined in the PAJA, with a
lack of standing. This is, in my view, an incorrect approach. Whether one is
dealing with administrative action as defined in the PAJA is a separate and
distinct enquiry to whether a party has standing to challenge an exercise of

15 See Democratic Alliance v Ethekwini Municipality 2012 (2) SA 151 (SCA) paras 20-21.
16 See for instance, Fedsure Life Assurance Ltd & others v Greater Johannesburg
Transitional Metropolitan Council & others 1999 (1) SA 374 (CC) para 56; President of the
Republic of South Africa & others v South African Rugby Football Union & others 2000 (1) SA
1 (CC) para 148; Pharmaceutical Manufacturers Association of SA & another: In re ex parte
President of the Republic of South Africa & others  2000 (2) SA 674 (CC) paras 82-85;
Affordable Medicines Trust & others v Minister of Health & others 2006 (3) SA 247 (CC) paras
74-75; Albutt v Centre for the Study of Violence and Reconciliation & others 2010 (3) SA 293
(CC) paras 49-50.

public power. The first enquiry relates to the nature of the public power in
issue, while the second relates to the interest that an applicant may have in
proceedings, and whether that interest is sufficient to enable it to challenge
the exercise of the public power concerned. The first issue is determined by
an application of the definition of administrative action in the PAJA to the
facts, while the second issue is determined by the application of s 38 of the
Constitution.17

[26] This distinction is illustrated by Democratic Alliance & others v Acting
National Director of Public Prosecutions & others18 in which this court
intimated (without deciding the issue) that a decision to discontinue a
prosecution was not an administrative action for purposes of PAJA but held
that it was reviewable in terms of s 1(c) of the Constitution19 and found that
the appellant, a political party, had standing to review the decision because,
inter alia, of its interest „in ensuring that public power is exercised in
accordance with constitutional and legal prescripts and that the rule of law is
upheld‟.20

[27] Whether a litigant‟s interest is sufficient to clothe him or her with
standing involves a consideration of the facts, the statutory scheme involved
(in public law disputes, a statutory power is almost inevitably involved) and its
purpose: the issue must, in other words, be determined in the light of the
factual and legal context.21

17 Section 38 of the Constitution reads:
„Anyone listed in this section has the right to approach a competent court, alleging that a right
in the Bill of Rights has been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights. The persons who may approach a court are –

(a)
anyone acting in their own interest;

(b)
anyone acting on behalf of another person who cannot act in their own name;
(c)
anyone acting as a member of, or in the interest of, a group or class of
persons;

(d)
anyone acting in the public interest; and

(e)
an association acting in the interest of its members.‟
18 Democratic Alliance & others v Acting National Director of Public Prosecutions & others
2012 (3) SA 486 (SCA).
19 Para 27.
20 Para 44.
21 Rinaldo Investments (Pty) Ltd v Giant Concerts CC & others [2012] 3 All SA 57 (SCA)
paras 15-16.

[28] The source of the power to enact the Howick scheme is the Town
Planning Ordinance 27 of 1949 (Natal). Section 40(1) of the Ordinance
contains a statement of the general purpose of every structure plan,
development plan, town planning scheme or package of plans. That purpose
is to achieve „a co-ordinated and harmonious development of the municipal
area, or any area or areas situate therein, to which it relates . . . in such a way
as will most effectively tend to promote health, safety, order, amenity,
convenience and general welfare, as well as efficiency and economy in the
process of development and the improvement of communications‟.

[29] In Administrator, Transvaal and the Firs Investments (Pty) Ltd v
Johannesburg City Council22 Ogilvie Thompson JA said that it was „of the
essence of a town-planning scheme that it is conceived in the general
interests of the community to which it applies‟. And in BEF (Pty) Ltd v Cape
Town Municipality & others23 Grosskopf J stated:
„The purposes to be pursued in the preparation of a scheme suggest to me that a
scheme is intended to operate, not in the general public interest, but in the interest of
the inhabitants of the area covered by the scheme, or at any rate those inhabitants
who would be affected by a particular provision. And by "affected" I do not mean
damnified in a financial sense. "Health, safety, order, amenity, convenience and
general welfare" are not usually measurable in financial terms. Buildings which do
not comply with the scheme may have no financial effect on neighbouring properties,
or may even enhance their value, but may nevertheless detract from the amenity of
the neighbourhood and, if allowed to proliferate, may change the whole character of
the area. This is, of course, a purely subjective judgment, but in my view this is the
type of value which the ordinance, and schemes created thereunder, are designed to
promote and protect. In my view a person is entitled to take up the attitude that he
lives in a particular area in which the scheme provides certain amenities which he
would like to see maintained. I also consider that he may take appropriate legal steps
to ensure that nobody diminishes these amenities unlawfully.‟

22 Administrator, Transvaal and the Firs Investments (Pty) Ltd v Johannesburg City Council
1971 (1) SA 56 (A) at 70D.
23 BEF (Pty) Ltd v Cape Town Municipality & others 1983 (2) SA 387 (C) at 401B-F.

[30] The BEF case is simply a specific application of the broader principle
expressed in Patz v Greeene & Co24 which was summarised thus in this court
by Stratford JA in Roodepoort-Maraisburg Town Council v Eastern Properties
(Pty) Ltd:25
„Where it appears either from a reading of the enactment itself or from that plus a
regard to surrounding circumstances that the Legislature has prohibited the doing of
an act in the interest of any person or a class of persons, the intervention of the Court
can be sought by any such person to enforce the prohibition without proof of special
damage.‟

[31] The BEF case was applied by Meer J in PS Booksellers (Pty) Ltd &
another v Harrison & others26 when she spoke of „the recognised standing of
residents and property owners, in a community or township, to enforce the
provisions of zoning schemes‟. And in Pick ‘n Pay Stores Ltd & others v
Teazers Comedy and Revue CC & others27 Hussain J held that it was not only
owners of property but also lessees of property who may fall within the class
of persons whose interests are protected by a town planning scheme.
Consequently it is not only owners of property who may enforce the terms of a
town planning scheme. Lessees may also have standing to do so.

[32] In the BEF case, Grosskopf J raised the question of the limits of
standing for purposes of the review of a decision in terms of a town planning
scheme. Having held that a person living in an area generally speaking has
the right to take legal steps to enforce compliance with the scheme, he
proceeded to say that he „would not like to assert dogmatically that such a
remedy would be available to all persons living in the area covered by a
scheme as large as that of Cape Town‟. He did not have to engage with this
issue because the applicant before him was „an immediate neighbour to the
property on which the non-conforming garage was built‟.28

24 Patz v Greene & Co 1907 TS 427.
25 Roodepoort-Maraisburg Town Council v Eastern Properties (Pty) Ltd 1933 AD 87 at 96.
26 PS Booksellers (Pty) Ltd & another v Harrison & others 2008 (3) SA 633 (C) para 19.
27 Pick ‘n Pay Stores Ltd & others v Teazers Comedy and Revue CC & others 2000 (3) SA
645 (W) at 654F-H.
28 BEF (Pty) Ltd v Cape Town Municipality & others (note 23) at 401E-F.

[33] Prinsloo & Viljoen Eiendomme (Edms) Bpk v Morfou,29 while accepting
the principle set out in the BEF case, applied the qualification alluded to by
Grosskopf J. There was in this case no evidence as to such fundamental
issues as where the house of the respondent (on appeal) was situated in
relation to the site on which the bottle store that was the subject of his
challenge was built, the distance between the two, the area covered by the
town planning scheme and whether the respondent‟s property and the
property on which the bottle store stood were in the same use zone.30 In these
circumstances, the court held that the respondent had failed to show that, in
relation to the property on which the bottle store stood, the restriction he
sought to enforce was enacted in the interest of property owners such as
him.31  In all of the cases in which a property owner was held to have standing,
Eloff JP stated, the „nature of the conditions and the circumstances of the
case‟ showed that the scheme had been enacted in the interest of the
applicants concerned: in all of these cases the applicants whose standing was
recognised were persons who owned land in the vicinity of the respondent‟s
land and in each case their properties fell within the same use zone as the
respondents.32

[34] In this matter, the nature of the interest involved is the right to
enforcement of the Howick scheme. It is this interest that gives the appellants
standing. They are part of the class of persons in whose interest the Howick
scheme operates for three interlocking reasons: first, they are an owner and a
lessee respectively of property within the area covered by the Howick scheme
in a modestly sized town; secondly, their properties and business are within
the same use zone as the development to which the building plans relate; and
thirdly, their properties and business are in such close proximity to the second
respondent‟s development, being across a road, that no question of them
being too far removed from the second respondent‟s development can arise.
These factors distinguish their circumstances from those of the respondent in
the Prinsloo & Viljoen Eiendomme case and place them squarely within the

29 Prinsloo & Viljoen Eiendomme (Edms) Bpk v Morfou 1993 (1) SA 668 (T).
30 At 670B-F.
31 At 672D.
32 At 671B-F.

principles set out in the BEF case. In addition, the requirements of annexure 7
of the Howick scheme in relation to the procedure for obtaining special
consent for specific relaxations, discussed in paragraphs 61 to 65, indicate
that it is not only immediate neighbours who may enforce compliance with the
scheme, but all those to whom notice must be given before relaxation is
permissible, who may object to the relaxation and even appeal against an
unfavourable decision.

[35] The appellants‟ interest as persons in whose favour the Howick
scheme operates is a sufficient interest for purposes of s 38(a) of the
Constitution33 to enable them to apply to court to vindicate their fundamental
right to just administrative action entrenched in s 33(1) of the Constitution and
given effect to by the PAJA. The challenge to their standing consequently has,
in my view, no merit and must fail.

The exhaustion of internal remedies

[36] The court below held that the appellants had available to them an
internal appeal which they had not utilised but were required to exhaust
before applying to review the decision to approve the building plans. It held
that their application had to be dismissed on this basis alone. This duty to
exhaust their internal remedy arose, it found, from s 7(2) of the PAJA (which
refers to „an administrative action in terms of this Act‟) even though it had held
earlier that the decision complained of was not an administrative action for
purposes of the PAJA. In these circumstances the court below could not
logically have applied s 7(2) of the PAJA and ought to have found that the
less stringent common law approach to the exhaustion of internal remedies
applied (which ironically is more compatible with the fundamental right of
access to court than s 7(2) of the PAJA) and that there was no bar to it

33 That the interest concerned does not have to be a right for purposes of s 38(a) of the
Constitution appears clearly from Kruger v President of the Republic of South Africa & others
2009 (1) SA 417 (CC) para 25.

reviewing the decision.34 It should then have reviewed the decision in terms of
the principle of legality and rationality sourced in s 1(c) of the Constitution.

[37] As I have found that the decision was an administrative action for
purposes of the PAJA, it is necessary to address the issue of whether the
appellants had available to them an internal remedy which they ought to have
utilised.

[38] Section 7(2) of the PAJA states:
„(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.‟

[39] No application for exemption from the duty to exhaust internal
remedies has been brought by the appellants because their argument is that
no such remedy is available to them and so s 7(2) has no application.

[40] There appear to be only two possible internal remedies. The first is the
internal appeal created by s 62 of the Local Government: Municipal Systems
Act 32 of 2000. This court has held, however, in City of Cape Town v Reader
& others35 that this appeal is only available to an unsuccessful applicant for
planning permission and not to a person who was not party to an application
for planning permission, such as a neighbour. The crux of the reasoning, in

34 See for instance, Bindura Town Management Board v Desai & Co 1953 (1) SA 358 (A);
Welkom Village Management Board v Leteno 1958 (1) SA 490 (A); Golube v Oosthuizen &
another 1955 (3) SA 1 (T); Lawson v Cape Town Municipality 1982 (4) SA 1 (C); Mahlaela v
De Beer NO 1986 (4) SA 782 (T); Maluleke v MEC, Health and Welfare, Northern Province
1999 (4) SA 367 (T). See too Baxter (note 13) at 720-723.
35 City of Cape Town v Reader & others 2009 (1) SA 555 (SCA) paras 30-32.

the majority judgment of Lewis JA, was that, in Walele’s case,36 the
Constitutional Court had held that objectors to the grant of planning
permission (such as the appellants in this case) have no right to take part in
the approval process, although they may subsequently challenge the validity
of the approval after it has been granted, and so a person who was not a
party to the application process cannot appeal against the result.37 Section 62
is not available to the appellants. It is not an internal remedy in their hands for
purposes of s 7(2) of the PAJA.

[41] The second possibility is s 9 of the National Building Regulations and
Building Standards Act. This section provides as follows:
„(1) Any person who –
(a)
feels aggrieved by the refusal of a local authority to grant approval
referred to in section 7 in respect of the erection of a building;
(b)
feels aggrieved by any notice of prohibition referred to in section 10; or
(c)
disputes the interpretation or application by a local authority of any
national building regulation or any other building regulation or by-law,
may, within the period, in the manner and upon payment of the fees prescribed by
regulation, appeal to a review board.‟

[42] Sections 9(1)(a) and (b) are not of application because they apply
expressly to persons who have applied unsuccessfully for approval for the
erection of a building or have been prohibited from either commencing or
continuing with building operations. I turn to consider whether s 9(1)(c) applies
to the appellants.

[43] It appears to me that there are two reasons why s 9(1)(c) does not
apply to the appellants. The first flows from the reasoning in Reader. How can
a person appeal against a decision taken in proceedings in which he or she
was not a party? The essence of an appeal is a rehearing (whether wide or
narrow) by a court or tribunal of second instance.38 Implicit in this is that the

36 Note 14.
37 Para 30.
38 See generally, D R Harms Civil Procedure in the Supreme Court at C1.4. See too Tikly &
others v Johannes NO & others 1963 (2) SA 588 (T) at 590G-591A.

rehearing is at the instance of an unsuccessful participant in a process.
Persons in the position of the appellants cannot be described as unsuccessful
participants in the process at first instance and do not even have the right to
be notified of the decision.

[44] The second reason relates to the subject matter of s 9(1)(c). It affords a
right of appeal in respect of a local authority‟s interpretation or application of
any of three types of legislative instruments: a national building regulation,
any other building regulation and a by-law. A regulation, according to Baxter,
is a legislative instrument „used by all classes of administrative authorities,
including ministers, to complete the details concerning the practical
implementation of the parent legislation, the procedures to be followed and
behaviour to be observed by persons to whom the parent legislation
applies‟.39 A by-law, he says, is a legislative instrument „used most frequently
by municipalities to regulate the conduct of persons falling within their
jurisdiction‟.40 He defines a scheme as a legislative instrument „created by
local authorities for the purpose of town planning‟,41 thus distinguishing a
scheme from a regulation and a by-law.

[45] The appellants challenge the validity of the first respondent‟s relaxation
of the side space and parking requirements of the Howick scheme. If they are
correct, they argue, the approval of the building plans will have to be set
aside. The Howick scheme owes its legal pedigree to the Town Planning
Ordinance (Natal).  In terms of s 44(1), a municipality „may, by resolution,
decide to prepare‟ a town planning scheme. In terms of s 44(2), such a
resolution „shall not take effect unless and until it is approved by the
responsible Member of the Executive Council‟(the MEC).

[46] The Ordinance prescribes procedural steps that must be taken before
the scheme can be placed before the MEC.  Section 49 provides that before it
is submitted to the MEC „the draft scheme shall be adopted by resolution of

39 Baxter (note 13) at 199.
40 Baxter (note 13) at 199.
41 Baxter (note 13) at 199.

the local authority at a meeting of which special notice indicating the business
to be transacted has been given to each member‟.

[47] Prior to the MEC authorising the scheme he or she must refer it to the
KwaZulu-Natal Planning and Development Commission, for its consideration
and report. The commission must give notice to the public of the application
for the scheme‟s approval.42  Members of the public may file objections or
other representations43 and the application is then set down for a public
hearing, where the municipality, objectors and other interested parties are
heard.44 After the hearing the commission submits to the MEC a copy of the
record of the proceedings, copies of objections and other representations and
a report as well as any recommendations it may wish to make.45

[48] After consideration of the commission‟s report and recommendations,
the MEC may refuse to approve the scheme or he or she may approve it with
or without modifications.46 Finally, when the MEC has approved a scheme he
or she „shall notify such approval by proclamation in the Gazette and such
scheme shall come into operation upon the publication of such proclamation,
and thereafter be referred to as an approved scheme‟.

[49] From this analysis of how a scheme comes into operation, it is
apparent that, although it is a legislative instrument (on account of its general
application), it is not a regulation made by the MEC and it is also not a by-law
passed by the municipality. It is a hybrid form of legislation created by
resolution in the local sphere of government, and approval and promulgation
by proclamation in the provincial sphere of government with a public
participation process sandwiched between the two. It is, consequently, not
one of the types of legislative instruments referred to in s 9(1)(c) of the
National Building Regulations and Building Standards Act. As a result, the
internal appeal created by the section is not available to the appellants. (The

42 Ordinance, s 51.
43 Ordinance, s 52.
44 Ordinance, s 53(1).
45 Ordinance, s 53(3).
46 Ordinance, s 54(1).

same conclusion was reached by Davis J in Van der Westhuizen & others v
Butler & others47 in relation to the equivalent legislation in the Western Cape
Province.)

[50] In the result, the court below‟s conclusion that the appellants‟
application had to be dismissed because they had not, prior to launching it,
exhausted their internal remedies as required by s 7(2) of the PAJA was
erroneous. That being so, the merits of the application to review the approval
of the second respondent‟s building plans can now be considered, the twin
hurdles set up by the PAJA and the standing point having been cleared by the
appellants.

The merits

[51] The validity of the first respondent‟s approval of the second
respondent‟s building plans is challenged on the basis that because the
decision to relax the Howick scheme‟s parking requirement was unreasonable
and its side space requirement was relaxed unlawfully, the approval of the
building plans itself was invalid.

The parking requirement

[52] The first respondent‟s council took a decision to waive compliance with
the requirement that the second respondent was to provide 82 parking bays
on the premises (one parking place for every 23 square metres) on condition
that it contributed R190 000 to a parking fund. It did so in terms of clause
8.5.1 of the Howick scheme, which allows for this in circumstances in which „it
is physically impractical to provide on-site parking without disturbing the
continuity of the shopping frontage, or where the lot is of such proportions that
parking accommodation cannot be reasonably provided‟.

47 Van der Westhuizen & others v Butler & others 2009 (6) SA 174 (C) at 187G-H.

[53] This decision was challenged by the appellants on the basis of its
unreasonableness on account of irrelevant considerations having been taken
into account and it being irrational.

[54] The first respondent‟s council had a report from Simpson, the general
manager: planning and development services, before it when it took the
decision. That report pointed to the empowering provision, clause 8.5.1,
spoke of the impossibility of providing parking in terms of the current design
and pointed to the economic benefits for Howick of the development
proceeding. The council did not take its decision immediately but adjourned to
consider the proposal. It also had the appellants‟ representations before it.
When it took its decision, it did not do so lightly, according to Simpson, who
pointed out that it was taken „after considering input from interested and
affected parties and the fact that the proportions of the site meant that the
parking accommodation could not reasonably be provided‟.

[55] In my view, reliance on clause 8.5.1 was justified and the factors that
were taken into account were relevant to the decision. I see nothing untoward
about a council deciding that, where the objective circumstances are present
to allow it to relax its parking requirements, the nature of the development will
not need much parking to be provided, the development will have positive
economic consequences for the town, that the parking requirement should be
relaxed and the developer be required to contribute to a parking fund that will,
in turn, be used to upgrade parking some 230 metres from the development.
The decision is neither unreasonable for want of irrelevant considerations
having been taken into account nor irrational.

The side space requirement

[56] Simpson explained how the side space requirement was relaxed. He
said that at a fairly early stage in the process various issues were raised with
the second respondent, including the need to apply for the relaxation of the
side space requirement. A few days later he received a letter from the second
respondent‟s architect which attached a letter from the neighbouring land

owner „confirming relaxation of the side building line to zero‟. This meant, he
said, that „the building could be built up to the property line of Erf 848 on the
side adjoining Lot 776‟.

[57] He explained later in his answering affidavit that clause 2.6.3 of the
Howick scheme „authorises the municipality‟ to relax the side space
requirement, that it was relaxed and that because „the municipality‟ had
exercised its discretion a special consent application was not required.

[58] De Jesus pointed out in his replying affidavit that clause 2.6.3 did not
apply on the facts and that Simpson had not said who took the decision but it
had clearly been him and he had no authority to take it. In a supplementary
affidavit, Simpson stated that he had the delegated authority to take such a
decision and he had in fact done so. This brought forth the amended notice of
motion in terms of rule 53(4) which sought the setting aside of Simpson‟s
decision – in the event of it being found that he took the decision – and the
setting aside of the approval of the second respondent‟s building plans.

[59] Despite Simpson‟s coyness, in his answering affidavit, as to how and
by whom the decision was taken, it must be accepted that he took the
decision and that authority to do so had been delegated to him by the
municipal council, along with a vast array of other powers. The validity of that
delegation of power is not challenged and it is not for us to express a view on
the wisdom of a democratically elected and accountable municipal council
delegating powers on such a grand scale to one unelected official. The issue
that we have to decide is whether Simpson could validly have relaxed the side
space requirement in the manner in which he did.

[60] As part of the general restrictions in terms of the Howick scheme,
clause 2.6.1 provides that, subject to qualifications not relevant for present
purposes, „[n]o building shall be erected nearer than 2 metres to any side or
rear boundary of the lot on which it is situated‟. Clause 2.6.3 then provides:
„The local authority may, in its discretion, permit in any zone any building to be
erected closer to any boundary than the distance specified in these clauses if on

account of the siting of existing buildings or the shape, size or levels of the lot, the
enforcement of these controls will, in the opinion of the local authority, render the
development of the lot unreasonably difficult. In considering any application under
this clause the local authority shall have due regard to any possible detrimental effect
on adjoining properties.‟

[61] Part 8 of the scheme deals with commercial zones. After clause 8.3
has set out, in table form, the buildings and uses that are permitted in
commercial zones, clause 8.4 provides for what it terms additional controls.
Clause 8.4.3 deals with the relaxation of the side space requirement. It states:
„The side space requirement may be relaxed by special consent of the local authority
except where it is necessary to provide access to the rear of the building for the
purpose [of] parking and loading accommodation or where such buildings adjoin lots
zoned for residential purposes.‟

[62] Annexure 7 deals with special consent. It says that a local authority
may not consider an application that requires special consent until the
applicant has complied with the various requirements listed in sub-paragraphs
(i) to (x) of the annexure. These include that: the application for special
consent must be in writing „setting out full particulars and reasons, and such
application shall be submitted in duplicate‟; the applicant shall give notice of
the application in a newspaper or newspapers approved by the council; he or
she shall also place a notice „in a prominent position on the property‟; and so
on.

[63] It was argued that clause 2.6.3 and clause 8.4.3 create different
mechanisms for the relaxation of the side space requirement: if the
jurisdictional requirements listed in clause 2.6.3 are present, the side space
requirement can be relaxed without special consent.

[64] I do not agree. Clause 2.6.3 is a general provision while clause 8.4.3
applies specifically to land use controls in commercial zones. In other words,
clause 2.6.3 tells one of the circumstances in which a local authority may
relax the side space requirement, but it says nothing of how this is to be done.

Clause 8.4.3 provides the answer: in commercial zones, the side space
requirement may be relaxed with special consent; and annexure 7 sets out
how that special consent is to be sought.

[65] It is common cause that no special consent was sought or granted.
Simpson took the view that it was not required. In this he misconstrued the
relevant provisions of the scheme and misconstrued the power that had been
delegated to him. He took a decision in the mistaken belief that clause 2.6.3
authorised him to do so. His decision is therefore to be reviewed and set
aside in terms of s 6(2)(a)(i) of the PAJA. It can also be said that, by
purporting to grant the relaxation in the absence of an application for special
consent and compliance with the procedural requirements of annexure 7, he
failed to comply with „a mandatory and material procedure . . . prescribed by
an empowering provision‟. His decision falls to be set aside on this account in
terms of s 6(2)(b) of the PAJA.

The approval of the building plans

[66] I turn now to the approval of the second respondent‟s building plans.
Section 7(1)(a) of the National Building Regulations and Building Standards
Act provides that if a local authority, having considered a recommendation of
the building control officer concerning an application for the approval of
building plans, „is satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall grant its
approval in respect thereof‟.

[67] Section 6(1) of the KwaZulu-Natal Planning and Development Act 6 of
2008 states that a town planning scheme „is binding on the municipality, all
other persons and organs of state, except in the event of a conflict with the
provisions of an integrated development plan that was adopted prior to the
scheme or amendment to the scheme‟. This is reinforced by s 56(1) of the
Town Planning Ordinance which says that when an approved scheme comes
into force „the responsible authority shall observe and enforce the observance
of all the provisions of the scheme‟. Section 77 makes it a criminal offence to

fail to comply with a notice directing compliance with a scheme. This means
that the provisions of a scheme fall within the term „any other applicable law‟
in s 7(1)(a).48

[68] In Walele’s  case49 Jafta AJ held that s 7(1) requires a decision-maker
to satisfy himself or herself of two things before he or she can validly approve
building plans. They are that „there is compliance with the necessary legal
requirements‟ and that „none of the disqualifying factors in s 7(1)(b)(ii) will be
triggered by the erection of the building concerned‟. The decision-maker‟s
ipse dixit that he or she was satisfied will not suffice. The state of satisfaction
must rest on objectively reasonable grounds50 and it is a reviewable
irregularity for the decision-maker to fail to „properly determine that none of
the disqualifying factors would be triggered‟.51

[69] Heher JA, in True Motives 84 (Pty) Ltd v Mahdi & another,52 set out
how the test is to be applied as follows:
„The refusal of approval under s 7(1)(a) is mandatory not only when the local
authority is satisfied that the plans do not comply with the Act and any other
applicable law, but also when the local authority remains in doubt. The plans may not
be clear enough. For instance, no original ground levels may be shown on the
drawings submitted for approval, with the result that the local authority is uncertain as
to whether a height restriction imposed with respect to original ground levels is
exceeded. In those circumstances the local authority (a) would not be satisfied that
the plans breach the applicable law, but equally (b) would not be satisfied that the
plans are in accordance with the applicable law. The local authority would, therefore,
have to refuse to grant its approval of the plans. Thus, the test imposed by s 7(1)(a)
requires the local authority to be positively satisfied that the parameters of the test
laid down are met.‟

[70] In this case, given the complete absence of an application for special
consent for the relaxation of the side space requirement and no attempt to

48 eThekwini Municipality v Tsogo Sun KwaZulu-Natal (Pty) Ltd 2007 (6) SA 272 (SCA) para
25; Muller NO & others v City of Cape Town 2006 (5) SA 415 (C) para 27.
49 Note 14 para 55.
50 Para 60.
51 Para 63.
52 True Motives 84 (Pty) Ltd v Mahdi & another 2009 (4) SA 153 (SCA) para 19.

comply with the procedural requirements of an application for special consent,
the first respondent could not have been satisfied that the second
respondent‟s application for the approval of its plans complied with the Howick
scheme. Nothing in the record indicates that any enquiries were made in this
regard or that the issue was even considered. That being so, a jurisdictional
fact for the proper exercise of the power was absent and the approval of the
building plans must be set aside on the basis of s 6(2)(b) of the PAJA, in that
„a mandatory and material . . . condition prescribed by an empowering
provision was not complied with‟.

The order

[71] The following order is made.
1 The appeal is upheld with costs.
2 The order of the court below is set aside and replaced with the following
order:
(a) The decision of the general manager: planning and development services
of the first respondent, purportedly taken in terms of clause 2.6.3 of the
Howick town planning scheme, relaxing the side space requirement in respect
of erf 848, Howick is set aside.
(b) The decision of the first respondent‟s council taken on 30 June 2010 to
approve the building plans submitted on behalf of the second respondent for
building work on erf 848, Howick is set aside.
(c) The respondents are directed, jointly and severally, to pay the applicant‟s
costs, including the costs of the application for interim relief.

_______________
C Plasket
Acting Judge of Appeal

HEHER JA:
[72] I have had the privilege of reading the judgment of Plasket AJA. My
consideration of the matter leads me to a different conclusion.
[73] Counsel for the municipality has submitted that it was not open to the
appellants to resort to proceedings for judicial review, whether under PAJA or
the common law, because they possessed no direct interest in the decision of
the council to relax the side space requirement on erf 848,the property of the
second respondent. This is a challenge to their locus standi in these
proceedings. For the reasons that follow I agree with the submission.
[74] In the context of a town planning scheme, the concept of side space is
a land use control usually directed to the protection of the amenities of a
property adjoining the subject property on that side. The amenities would
typically include light, air and spatial factors such as access and private open
space, which often, although not invariably, stand to benefit residential usage
of the adjoining property.
[75] A similar effect can be achieved by providing for set backs of building
lines on street frontages. In such a case aesthetics might be added to the
amenities and a property located opposite the subject property will probably
possess a cognisable interest in the preservation of the building line.
(Depending on factors such as the rights attaching to the subject property, its
location and the nature and importance of the street, protectable interests
may extend to other properties within the area of the scheme.)
[76] The relevant provisions of the scheme relating to side space
Clause 2 of the scheme provides:
„2.6
SIDE AND REAR SPACE
2.6.1 No building shall be erected nearer than 2 metres to any side or rear
boundary of the lot on which it is situated provided that no building or portion of a
building intended to be used for the purpose of a residential building, medium density
housing unit, maisonette, semi-detached house or terraced house shall be erected
nearer than 4,5 metres to any such boundary, and provided the minimum side or rear
space, as the case may be, shall be increased by 1,5 metres for the full height of the
building for every storey above three storeys of the building.

2.6.2 The local authority may authorise the erection of single storey outbuildings on
the side and rear boundaries provided the owners of properties contiguous to the

affected boundaries have indicated in writing that they would have no objection to
such authorization.
2.6.3 The local authority may, in its discretion, permit in any zone any building to be
erected closer to any boundary than the distance specified in these clauses if on
account of the siting of existing buildings or the shape, size or levels of the lot, the
enforcement of these controls will, in the opinion of the local authority, render the
development of the lot unreasonably difficult. In considering any application under
this clause the local authority shall have due regard to any possible detrimental effect
on adjoining properties.
2.6.4 Where access to parking courts is required, the side space of affected lots
shall be calculated from the boundaries of such access road.‟
[77] It is significant that in the exercise of the general discretion conferred
on the council (by clause 2.6.3) to permit relaxation of building lines, the
council is obliged to have regard to the possible detrimental effect on
adjoining properties but is not required to have the same regard to the effect
on neighbouring properties (such as the first appellant‟s properties are in
relation to erf 848).
[78] Clause 2.6 contains general provisions applicable throughout the
scheme which in accordance with the maxim generalia specialibus non
derogant must be read subject to provisions dealing with the same subject
matter in relation to a particular case: R v Gwantshu 1931 EDL 31.
[79] In this last-mentioned regard special provisions govern the relaxation of
side space in commercial zones. This appeal concerns such a case since erf
848 (the subject property) is zoned General Commercial. However, in such a
zone „the building line shall be the street line‟ (clause 8.4.1). Thus, unlike
property adjacent to a side space, an erf located directly across the street (as
are the first appellant‟s erven 11 and 12) does not enjoy the benefit of set
back on the property opposite (erf 848).
[80] In relation to an application for special consent for the relaxation of side
space in a commercial zone the local authority may not grant such consent if
a building adjoins a lot zoned for residential purposes (clause 8.4.3).53 A
property that is zoned for residential purposes but does not adjoin the

53 The zoning of erf 776 permits, as a primary use, „residential buildings, except on the
ground floor‟. It was not contended by the appellants that erf 776 was, therefore, „zoned for
residential purposes‟.

property on which the side space is sought to be relaxed does not obtain a
similar protection if it is a neighbouring property even when simply separated
by a road from the property on which the side space is located.
[81] In the absence of some particular circumstance – for which no case is
made by the appellant – I see no reason to infer that a side space limitation
on a property within a commercial zoning is, in the context of the scheme in
question, intended to operate for the benefit of a neighbouring property also
zoned commercial, but not located adjacent to the side space which is the
subject of the limitation. The fact that both properties are sited in a
commercial zone is meaningless unless the restricting provision also has a
material bearing on both.
The locus standi of the first appellant
[82] The authorities cited by Eloff JP in Prinsloo & Viljoen Eiendomme
(Edms) Bpk v Morfou 1993 (1) SA 668 (T) at 670H-I bear out the conclusion
of the learned judge that where the owner of a property situated in the area of
a scheme attempts, solely on the strength of the scheme to restrain the owner
of another property in the same area from putting it to a use prohibited by the
scheme, the test is whether the restrictions on the use sought to be enforced
were enacted in the interests of a property owner in the position of the
applicant or whether the applicant has suffered loss or damage by reason of
the breach of the restriction.
[83] The full court in Prinsloo & Viljoen Eiendomme was required to
consider the locus standi of the owner of a stand in Kriel. The township was
the subject of a town planning scheme. The owner applied to interdict the use
of a building on a property in the same township which was zoned „special‟ for
the purpose of a hotel but upon which the business of a liquor store was being
conducted. The full court held that the owner had no locus standi to enforce
the particular provision of the scheme that limited the use of the property to
that of a hotel. Eloff JP said:
„It appears generally to have been accepted in the cases dealing with the point under
discussion that the test to be applied is that laid down in Patz v Greene & Co 1907
TS 427 at 433,subject to the gloss added in Roodepoort-Maraisburg Town Council v
Eastern Properties (Pty) Ltd 1933 AD 87 at 96,namely whether the restrictions on
use sought to be enforced were enacted in the interest of property owners in the

position of the applicants or whether the applicants have suffered loss or damage by
reason of the breaches of the restrictions (see CD of Birnam (Suburban) (Pty) Ltd
and Others v Falcon Investments Ltd 1973 (3) SA 838 (W) at 844D-H; BEF (Pty) Ltd
v Cape Town Municipality and Others 1983 (2) SA 387 (C) at 400D-H; and Randleigh
Buildings (Pty) Ltd v Friedman 1963 (3) SA 456 (D) at 458E-H).

It will be recalled that I found that the respondent made no averment of any
loss or damage to his own property by reason of the construction by the appellant of
its bottle store. The simple question remains whether respondent has shown that the
restriction on land created relative to stand I was enacted in the interest of property
owners such as the respondent. In each of the cases quoted to us in which it was
held that an owner of land subject to a town planning scheme may enforce any of its
terms applicable to another property, it was found that the nature of the conditions
and circumstances of the case showed that the condition and question was made in
the interest of persons such as the applicants. In the CD of Birnam case supra the
applicants were associated property development companies owning land in the
vicinity of the respondent‟s property (see at 840D). Their properties and that of the
respondent all fell within one and the same special residential use zone (see at
842A). In breach of the restrictions applicable to it,the respondent set up a quarrying
business on its property which was likely to affect the enjoyment by the applicants of
their properties adversely. On those facts Margo J held that the applicant had locus
standi. In the Randleigh Buildings case Warner AJ was concerned with restrictions
laid down in “residential areas”, where an owner of land in those areas sought to
restrict another from using it otherwise than for residential purposes. At 459A the
Court concluded:
“In the present case it seems to me that in preparing the scheme the Amanzimtoti
Town Council must have had in mind the interests of land owners in the area set
aside for residential purposes and consequently those owners have locus standi to
enforce that particular provision.”
In the BEF case supra the parties owned adjoining sites. Their properties were
subject to a town planning scheme which provided inter alia for open spaces. The
applicant in effect tried to enforce compliance with the scheme. After quoting the Patz
v Greene & Co case, Grosskopf J said (at 401B-F):
“The purposes to be pursued in the preparation of a scheme suggest to me that a
scheme is intended to operate, not in the general public interest, but in the interest of
the inhabitants of the area covered by the scheme, or at any rate those inhabitants

who would be affected by a particular provision.54 And by „affected‟ I do not mean
damnified in a financial sense. „Health, safety, order, amenity, convenience and
general welfare‟ are not usually measurable in financial terms. Buildings which do not
comply with the scheme may have no financial effect on neighbouring properties, or
may even enhance their value, but may nevertheless detract from the amenity of the
neighbourhood and, if allowed to proliferate, may change the whole character of the
area. This is, of course, a purely subjective judgment, but in my view this is the type
of value which the ordinance, and schemes created thereunder, are designed to
promote and protect. In my view a person is entitled to take up the attitude that he
lives in a particular area in which the scheme provides certain amenities which he
would like to see maintained. I also consider that he may take appropriate legal steps
to ensure that nobody diminishes those amenities unlawfully. I would not like to
assert dogmatically that such a remedy would be available to all persons living in the
area covered by a scheme as large as that of Cape Town. In the present case,
however, the applicant is an immediate neighbour to the property on which the non-
conforming garage was built.‟

I think it would be useful to deal further with the question posed by Grosskopf
J, whether any owner of a land covered by the Cape Town Town Planning Scheme
could enforce any condition applicable to any property in so large an area. I
respectfully venture to suggest that it depends on the circumstances and the nature
of the condition or restriction. There may be circumstances in which the particular
town planning scheme covers a large area with a variety of uses and restrictions and
that it is inconceivable that an owner in, say, the southern part of the area may
enforce a condition of a parochial nature applicable to the northern part of the
scheme. . . .

I do not think that the respondent has come near to showing that the
restriction on land which was imposed on the appellant‟s property was made in the
interests of properties such as his.‟
[84] I respectfully agree with the approach taken by the learned judge. A
town planning scheme frequently operates over areas markedly different in
location and intrinsic characteristics. It necessarily ranges over different uses
and land use controls many of which cannot be said to affect the overall
operation of the scheme. Not every control is of even indirect benefit to all
land in the scheme or all owners. The whole scheme is no doubt promulgated
in the general public interest of all owners of land in the area of the scheme in

54 The emphasis is mine.

the undefined senses of harmonious development, health, order, general
welfare etc which are the underlying purposes of such schemes. Such owners
may be regarded as a „class‟ within the public as that term is used in the
authorities. But the particular or direct interest of any owner in any provision of
the scheme must depend upon the reach of that provision in the context of the
scheme, and the nature of the adverse effects, if any, resulting from a breach
of the provision. Mere proximity without regard to the substance of the
restriction cannot be a sufficient determinant.
[85] In its application to the court a quo the present first appellant did not
allege, or set out any grounds upon which it can be found, that the side space
provision in question operates for the benefit of its property; indeed, as I have
attempted to show, such an inference runs counter to the context of the side
space provisions in the scheme. In clauses 8.4.3 and 2.6.3 it is not propinquity
which is important, but rather the adjacent location of the side space to a
residential erf. The first appellant also made no averment of actual or potential
loss or damage to its property by reason of the relaxation of the provision
(even in the wider sense ascribed to the concept of „adverse effects‟ by
Grosskopf J in BEF (Pty) Ltd v Cape Town Municipality 1983 (2) SA 387 (C)
at 401B-F). Neither the nature of the condition nor the circumstances of the
case conduce to a finding that the appellant‟s property benefits by the
maintenance of the side space restriction on the first respondent‟s erf or
suffers by its relaxation.
[86] I conclude as a result that the first appellant possessed no cognisable
legal interest in such illegality as the second respondent may have
perpetrated in relation to the relaxation of the side space condition on erf 848
and that the first appellant accordingly obtained no locus standi to impugn its
decision. The second appellant is merely the operator of the Spar
supermarket on the properties of the first appellant and can have no better
rights than the first appellant has.
[87] Although it is unnecessary to decide the question finally, if my
conclusion that only the owner of the adjoining erf 776 has a direct interest in
the maintenance and enforcement of the side space provision is correct, that
conclusion leads logically to a finding that the council‟s failure to follow the
procedures for special consent in Annexure 7 was not unlawful. This is

because the only person with an interest had furnished his consent for the
relaxation before the council made its decision. Public advertisement and the
opportunity to object, for which Annexure 7 provides, were therefore
superfluous and unnecessary.
[88] Having, for the reasons explained by Plasket AJA, failed to prove a
sustainable ground of review in relation to the parking provision over erf 848,
the appellants should have been non-suited.
[89] I would dismiss the appeal with costs.

_________________

J A HEHER

JUDGE OF APPEAL

THERON JA
[90] I have had the benefit of reading the judgments prepared by Plasket
AJA and Heher JA. I agree with both Plasket AJA and Heher JA that the
appellants have failed to prove any grounds upon which this court can set
aside the first respondent‟s decision to waive compliance with the parking
requirement. I agree with Heher JA that the appellants do not have standing
to challenge first respondent‟s decision regarding the side space requirement.
I would add the following brief comments.

[91] That Heher JA is correct is underscored by the fact that the appellants
did not seek an order that the building be demolished. The relief initially
sought by the appellants in respect of the side space requirement was that the
second respondent be ordered to demolish so much of the building that is
situated closer than two metres to the rear or side boundaries of the property.
It is so that the second respondent has undertaken „to restore the property or
alter it in accordance with any alteration of the … approvals on review‟. This
court has not given any directions as to the restoration or alteration of the
building. The abandonment of any relief against the second respondent raises

the question about the purpose of this appeal and might have rendered the
entire process academic.55

[92] The decision of the first respondent is an administrative act, which, until
set aside by a court in review proceedings, exists in fact and is capable of
having legally valid consequences.56 One of the consequences thereof is that
it gave the second respondent the right to proceed with building operations in
terms of the approved building plans, including the parking and side space
relaxations. The second respondent acted within the law and in accordance
with its rights, and within the terms of what it perceived to be a valid decision
taken by the first respondent. The administrative decision that the appellants
now seek to review and set aside have already been acted upon by the
second respondent.57 For as long as the decision of the first respondent
stood, the second respondent, in continuing with the building operations, was
acting lawfully.58 In my view, and having regard to the factual context in which
the decision was made, it would be unjust to grant the relief sought.

[93] I would dismiss the appeal, with costs.

_____________
L THERON
JUDGE OF APPEAL

55 West Coast Rock Lobster Association & others v Minister of Environmental Affairs and
Tourism & others [2011] 1 All SA 487 (SCA) para 45. Radio Pretoria v Chairman,
Independent Communications Authority of South Africa & another 2005 (1) SA 47 (SCA).
55 Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA) para
26.
55 Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province
& others 2008 (2) SA 481 (SCA) para 23; Camps Bay Ratepayers and Residents Association
v Harrison [2010] 2 All SA 519 (SCA) para 59.
55 Heritage Hill Home Owners Association v Shoprite Checkers (Pty) Ltd & others [2012]
ZASCA 65 para 26.

APPEARANCES:

For appellant :
A Rall SC

Instructed by:

Christopher Richard Lee Attorney, Howick;

McIntyre & Van der Post, Bloemfontein

For the first respondent: R M van Rooyen

Instructed by:

PKX Incorporated, Pietermaritzburg;

Lovius Block, Bloemfontein

For the second respondent: A J Dickson SC
Instructed by:
Jasat & Jasat, Pietermaritzburg;
Lovius Block, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
29 November 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *
JDJ PROPERTIES V UMNGENI LOCAL MUNICIPALITY

The Supreme Court of Appeal (SCA) today held that the decisions of the Umngeni Local
Municipality (the municipality) to relax the side space requirement of the Howick Town
Planning Scheme (the scheme) and to approve the building plans in favour of Triumph
Brokers (Pty) Ltd were unlawful. It upheld an appeal against an order of the KwaZulu-
Natal High Court dismissing a review application by JDJ Properties CC (the first appellant)
and Double Diamond CC (the second appellant).

The municipality had sold a certain immovable property to Triumph Brokers on which the
latter intended to build a shopping complex and lease it to Basfour 3281 (Pty) Ltd.
Subsequent to the sale agreement, the council approved Triumph Brokers’ building plans
and the general manager: planning and development services relaxed the side space
requirement of the scheme. The first and second appellants, who were the owner and lessee
of a property adjacent to Triumph Brokers’ property respectively, instituted an application

in the high court in terms of the provisions of the Promotion of Administrative Justice Act
3 of 2000 (the PAJA) to review and set aside the decisions. The bases for the order sought
were that the side space requirement was relaxed unlawfully and that the approval of the
building plans itself was invalid.

The high court had dismissed the application on the basis that the decision to approve the
building plans did not constitute administrative action as it did not adversely affect the
appellants’ rights and did not have a direct, external legal effect as required by the PAJA,
and that the appellants had failed to exhaust internal remedies available to them. The
appellants then appealed to the SCA against that order.

Before the SCA there were four questions. The first was whether the decision to approve
the building plans constituted administrative action. The court, with reference to the facts,
held that the decision had the capacity to affect the rights of the appellants and others living
and doing business in the area concerned, and would directly impact on them. The court
further held that the appellants, being the landowner and lessee respectively in the
immediate vicinity of the development, had the right to enforce compliance with the
scheme. Even if the decision did not constitute administrative action, the court said, it was
reviewable under the principle of legality. The second question was whether the appellants
had legal standing to challenge the decision. The SCA held that the scheme operated in the
interest of the appellants and that their right to enforce compliance therewith gave them
standing. The third question was whether the appellants had failed to exhaust internal
remedies. The SCA stated there were two possible remedies but held that the appellants
could not enforce those remedies as they were not available to them. The fourth question
related to the merits and in that respect the SCA made the order referred to above. In
making that order, the SCA held that Triumph Brokers had failed to seek special consent as
required by the scheme before the decision to relax the side space requirement was made
and that the decision maker had misconstrued the power delegated to him. With regard to
the decision to approve the building plans, the court held that a jurisdictional fact for the
proper exercise of the power, namely compliance with the scheme by Triumph Brokers’
application, was absent. The decisions, the SCA held, had to be set aside.