IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CONSTITUTION HILL
CCT Case No. 114/15 KZNHC Case No. 9645/14 In the matter between:
TRONOX KZN SANDS (PTY) LTD Applicant
and
KWAZULU-NATAL PLANNING AND
DEVELOPMENT APPEAL TRIBUNAL First Respondent
MTUNZINI CONSERVANCY Second Respondent
THE MTUNZINI FISH FARM (PTY) LTD Third Respondent
UMLALAZI LOCAL MUNICIPALITY Fourth Respondent
MEC FOR CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS Fifth Respondent
AFFIDAVIT
I, the undersigned
CHARALAMBOS CHRISTODOULOU
do hereby make oath and say that:-
1.
1.1 I am an adult businessman, and the sole member of Charalambos 107 Properties CC (“the close corporation”), operating from 209, 10th Avenue North, Morningside, Durban, KwaZulu-Natal.
1.2 The facts deposed to are within my personal knowledge and/or have been obtained from documents under the control of Charalambos 107 Properties CC.
1.3 Submissions of a legal nature are made on the advice of the close corporation’s legal representatives.
1.4 This affidavit is deposed to on behalf of the close corporation which has authorised me to so act.
The purpose of this affidavit
2. This affidavit serves to illustrate from the close corporation’s own experience, the manner in and extent to which the appeal provisions in the KwaZulu-Natal Planning and Development Act, 2008 (“thePDA”) have actually resulted in substantial interference with municipal planning competence. It will also reveal the extent to which the tribunal, particularly through its technical approach to appeals, frustrates development and creates grave delays in land development applications. None of this is in the public interest.
An attempt to rezone is met by repeated appeals
3. The close corporation is the lessee of parcels of vacant land forming part of immovable properties situate in Mpumalaga, KwaZulu-Natal which are owned by the Ingonyama Trust Board. The area of Mpumalanga is relatively undeveloped, job opportunities are few and facilities are limited.
4. The close corporation wishes to develop the land so as to construct a shopping centre. Not only will such a development create a number of jobs during the construction phase, it will provide ongoing and long term employment opportunities for the many people who will work in the centre once it is opened and provide facilities for the area.
5. With these aims in mind, more than three years ago, on 16 July 2012, the close corporation applied to the eThekwini municipality under Chapter 2 of the PDA, inter alia to rezone the properties over which the leases are held to enable the shopping centre development.
6. After the application for rezoning was advertised on 1 and 2 November 2012, objections were received by the developers of the Mpumalanga Mall, now known as Hammarsdale Junction. The eThekwini municipality considered these objections but nonetheless approved the rezoning application on 28 March 2013.
The developers of Hammarsdale Junction and two individuals lodged appeals.
They raised various legal technicalities and what amounted to a trade objection on the merits, which is really at the heart of the objections.
7. Astonishingly, the tribunal upheld the appeals on the grounds that the municipality had not made a decision on the application within the time period specified in the PDA. According to the tribunal this nullified the decision.
8. As the closing date for objections had been 3 December 2012 and the municipality goes into recess over the festive period, it is hardly surprising that there was some delay. How that could serve to vitiate the entire decision however, is hard to understand.
9. Nonetheless, the decision of the tribunal meant that the process had to begin again de novo. The applications were re-advertised on 5 and 6 September 2013 and, unsurprisingly, attracted objections from the same parties who had previously objected in effectively the same form. Those objections were again considered by the municipal manager but he decided on 8 January 2014 to approve the application.
10. The decision by the municipal manager on the second re-zoning application was made during recess under a delegation by Exco so as to avoid the issue regarding time periods which had been the cause of the previous appeal being upheld. The validity of the delegation was raised as a technical ground in the appeals which followed the second approval. Those appeals were lodged on 6 February 2014 and determined by the tribunal on 23 June 2014. On that occasion the tribunal indicated that it had difficulty with the validity of the delegation and, having had previous experience of the attitude adopted by the tribunal, the close corporation decided to re-advertise the application yet again.
11. The re-advertisement occurred on 19 September 2014 and, unsurprisingly, for the third time objections in essentially the same form were lodged by the developers of Hammersdale junction. All the same grounds were raised yet again but the municipality, having considered these, approved the application on 27 May 2015.
12. Inexorably, a third set of appeals was lodged on 15 July 2015 on the same grounds that had been raised before. Those appeals have not yet been dealt with because on 28 July 2015 the appeal tribunal gave notice that appeals could not proceed as its term of office had expired and not on 30 June 2015 and not been renewed by the MEC.
13. In terms of the PDA, the close corporation is not entitled to act on the developmental approval of the municipality until such time as the appeal process has been exhausted. For the three years whilst the appeals have been extant, the Close Corporation has thus to give effect to the development rights that vested when approval was granted pursuant to the exercise of eThekwini Municipality’s functions for municipal planning.
14. I have been advised that the fate of this pending appeal be determined or at least be informed by the approach that this Court adopts in Tronox. Nonetheless, as the unfortunate history sketched above explains, technicalities and nit-picking have bogged down a process where the true nature of the underlying trade objection has not yet been considered three years down the line.
15. The close corporation is confident that the municipality’s decision to approve the application will ultimately be upheld on the merits. It is submitted however that the PDA allows for technical objections to prevail over practical and economic priorities in a manner which impermissibly frustrates development within the municipal boundary and as such intrudes on the competence for
‘municipal planning’.
16. I am informed by the close corporation’s attorneys that the issue presently before this court concerns the appeal tribunal’s powers in terms of section 45 of the PDA which relates to land outside scheme areas. If this court confines its enquiry solely to section 45 the judgment will not directly affect the present pending appeal which was lodged under section 15. Nevertheless, I am advised and I submit that the remaining appeal provisions are also implicated because those same powers of the tribunal under section 45 which are being subjected to constitutional scrutiny in the present matter (under CCT case number 114/2015) apply equally to its powers in terms of section 15, under which the application was lodged.
17. I have been advised that if this Court limits its enquiry solely to the provisions of section 45, the municipality intends to launch a separate constitutional challenge to sections 15, 28, 57, 67 and all of Chapter 10 of the Act. It is reasonably anticipated that such proceedings are likely to be finalised only in 2017.
18. Whilst all of the aforegoing is occurring, the close corporation continues to suffer uncertainty and economic prejudice. I am sure that the close corporation is not the only other successful applicant in a similar position.
19. It is accordingly respectfully submitted that the interests of justice and of economic development require that all the appeal provisions in the PDA should be determined in the course of this court determining the confirmation of and appeal against the High Court’s decision in the Tronox matter.
________________________
DEPONENT
I hereby certify that the deponent has acknowledged to me that he/she knows and understands the contents of this affidavit, which was signed and sworn to before me at on this day of , and that the terms of Regulations R1258 and R1648 of 21 July 1972 and 19 August 1977, respectively, have been complied with.
__________________________
COMMISSIONER OF OATHS
