[MEDIA SUMMARY] Malebane v Dykema

The respondent (Dykema) was a property developer seeking to develop a petrol service station on the M1 highway north of Bela-Bela. His application was under consideration by the Limpopo Development Tribunal on 17 June 2012, the date when the period of suspension of a Constitutional Court order declaring Chapters V and VI of the Development Facilitation Act unconstitutional expired. The Tribunal granted the respondent's application after the expiry of the suspension period, at a time when the relevant statutory provisions were unconstitutional. A rival developer (the appellant, Malebane) also wished to develop a similar petrol service station on the same stretch of highway. Replacement legislation in the form of SPLUMA (Spatial Planning and Land Use Management Act 16 of 2013) only came into operation on 1 July 2015. The respondent sought to rely on transitional provisions in s 60(2)(a) of SPLUMA, claiming his application was still pending and that the local authority was obliged to deal with it.

• Whether an application is 'pending' before a tribunal when that tribunal no longer has lawful authority to make a decision because the statutory provisions under which it was acting have been declared unconstitutional
• Whether the respondent's application qualified as a pending application under the transitional provisions of s 60(2)(a) of SPLUMA
• The validity of a tribunal's approval granted after the expiry of a Constitutional Court suspension period and when the relevant statutory provisions were unconstitutional

The SCA upheld the appeal by the appellant (Malebane) against an order declaring that the respondent (Dykema) had a pending application that the local authority was obliged to deal with in terms of s 60(2)(a) of SPLUMA.

For an application or proceeding to be 'pending' before a tribunal, it must be awaiting a decision from that tribunal. Where a tribunal no longer has lawful authority to make a decision on an 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. Such applications cannot subsequently benefit from transitional provisions in replacement legislation that apply only to 'pending' applications. An approval granted by a tribunal after the expiry of a Constitutional Court suspension period and when the relevant statutory provisions are unconstitutional is invalid.

The majority noted that 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, choosing instead to rely on the invalid Tribunal decision. This observation suggests an alternative remedy was available to the respondent but was not pursued. The dissenting judge's view that the transitional provisions applied and the application remained pending despite the absence of any lawful basis for the Tribunal to dispose of it represents an alternative interpretation not adopted by the majority.

This case is significant in South African administrative and planning law as it clarifies the meaning of 'pending' applications in the context of transitional provisions when statutory regimes change due to constitutional invalidity. It establishes important principles regarding the status of applications before tribunals when the underlying statutory framework is declared unconstitutional and replacement legislation is enacted. The decision has practical implications for land use and planning applications caught in the transition between the Development Facilitation Act and SPLUMA, particularly following the Constitutional Court's declaration of unconstitutionality of portions of the Development Facilitation Act.