Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
03 December 2018
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.
Malebane v Dykema
The SCA today upheld an appeal by a property developer, wishing
to develop a petrol service station on the M1 highway north of Bela-Bela,
against an order declaring that a rival developer, seeking to undertake a
similar development on the same stretch of highway, had a pending
application that the local authority was obliged to deal with in terms of
s 60(2)(a) of Spatial Planning and Land Use Management Act 16 of 2013
(SPLUMA). The respondent’s application was under consideration by the
Limpopo Development Tribunal (Tribunal) on 17 June 2012, on which
date the period of suspension of an order of the Constitutional Court
declaring Chapters V and VI of the Development Facilitation Act
unconstitutional expired.
The Tribunal had granted the respondent’s application after the
expiry of the period of suspension and at a time when the relevant
statutory provisions were unconstitutional. In terms of two earlier
decisions by the SCA that approval was invalid. Replacement legislation
in the form of SPLUMA only came into operation on 1 July 2015. The
issue was whether the respondent’s application was still pending at that

time in order to enable him to take advantage of the transitional
provisions in s 60(2)(a) of SPLUMA.
The majority in the SCA held that for an application or proceeding
to be pending before a tribunal it must be awaiting the decision of that
tribunal. If the tribunal no longer has any lawful authority to make a
decision on the application, because the statutory provisions under which
it was acting have been declared unconstitutional, any outstanding
application not completed at that time is no longer pending before it.  The
respondent could have brought a fresh application before the local
authority at any time after 17 June 2012, but was unwilling to do so.
Instead he sought to rely on the invalid decision by the Tribunal. Once
the Tribunal could no longer make a lawful decision on his application it
was no longer pending before the Tribunal. Accordingly, when three
years later SPLUMA came into operation, the respondent could not rely
on that statute’s transitional provisions.
One judge dissented on the basis that the transitional provisions
applied and the application remained pending, notwithstanding the
absence of any basis upon which the Tribunal could lawfully have
disposed of it.