The Chairperson of the Municipal Appeals Tribunal, City of Tshwane & others v Brooklyn and Eastern Areas Citizens Association & others

In September 2015, Caliber 651 (Pty) Ltd (the developer) applied to the City of Tshwane Metropolitan Municipality for rezoning of Erf 908, Brooklyn from 'Residential 1' to 'Special' under the Town Planning and Townships Ordinance 15 of 1986 read with the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). The Brooklyn and Eastern Areas Citizen Association (BEACA) and the University of Pretoria objected. On 18 May 2016, the Municipal Planning Tribunal (MPT) approved the application. BEACA lodged a first internal appeal on 2 August 2016 and a second on 19 October 2016. The developer raised points in limine challenging the validity of these appeals. On 31 January 2017, the Municipal Appeals Tribunal (MAT) upheld the developer's points in limine and dismissed the appeals as invalid. BEACA applied to the High Court for review. During the pendency of the appeal, the building was completed and fully occupied, including by the University leasing approximately 75% of the beds for student accommodation.

• Whether the appeal was rendered moot by the completion and occupation of the building during the pendency of the appeal
• Whether the High Court's order was final and appealable, or whether it amounted to undesirable piecemeal appellate adjudication
• What appeal procedure was applicable to BEACA's internal appeal against the rezoning decision - section 59 of the Ordinance or section 51 of SPLUMA read with section 20 of the By-law
• Whether section 3(12) of the Tshwane Land Use Management By-law 2016 applied to BEACA's appeals
• Whether BEACA's first internal appeal was validly lodged and timeous
• Whether BEACA's second internal appeal was necessary and valid
• Whether the MAT had jurisdiction to determine points in limine

The appeal was substantially dismissed. Paragraph 2 of the High Court's order was revised to direct the MAT: (1) to dismiss the points in limine regarding BEACA's first internal appeal but uphold them regarding the second internal appeal; (2) to consider and determine the first internal appeal in accordance with section 20 of the By-law read with section 51 of SPLUMA. The appellants were ordered to pay BEACA's costs of appeal jointly and severally, including costs of two counsel.

The binding principles established are: (1) Section 16(2)(a) of the Superior Courts Act does not render an appeal moot where reversing the judgment below would avoid substantial further administrative proceedings and associated risks to the parties' interests. (2) A High Court order setting aside an administrative decision on jurisdiction and remitting for reconsideration is final and appealable under the Zweni test, not subject to piecemeal objections, as it definitively determines all issues before that court. (3) After commencement of SPLUMA and a municipality's land use management by-law, section 2(2) of SPLUMA renders inconsistent provincial appeal procedures (such as section 59 of the Ordinance) inapplicable; internal appeals must be brought under section 51 of SPLUMA read with the municipal by-law. (4) Transitional provisions preserving old appeal procedures apply only to appeals already pending when new legislation commences, not to appeals lodged thereafter. (5) Where legislation does not require identification of the statutory basis for an internal appeal, incorrect identification does not invalidate an appeal that substantively complies with applicable requirements and causes no prejudice. (6) Administrative functionaries have jurisdiction to determine points in limine regarding their own jurisdiction, though such determinations are reviewable for error of law under PAJA.

Ponnan JA (dissenting) observed that courts of appeal exist to settle concrete controversies with practical effect, not to give advisory opinions on abstract propositions. He suggested that where a building has been completed, occupied, and fully tenanted during the pendency of an appeal challenging the underlying rezoning, any judgment on appeal would have no practical effect or result. Rogers AJA noted obiter that even if the MAT could receive evidence of the completed building, it was uncertain whether it could or would rely on such evidence to avoid deciding the rezoning merits, particularly given the prohibition in section 20(11)(d)(ii) of the By-law against considering new evidence negatively affecting parties' rights. The majority also observed that the court a quo erred in suggesting that administrative functionaries generally lack jurisdiction to determine points in limine, noting that functionaries must ensure jurisdictional prerequisites are present before adjudicating, subject to correction on review. Rogers AJA criticized as 'absurd and counter-intuitive' the municipal parties' submission that older pending appeals must go to the MAT while newer appeals must go to provincial bodies under the Ordinance.

This case clarifies the transition from the old provincial town planning regime under the Town Planning and Townships Ordinance to the new municipal-based system under SPLUMA and municipal by-laws. It establishes that after a municipality's land use management by-law comes into force, internal appeals must be brought under the new statutory regime (SPLUMA and the by-law) rather than the inconsistent provisions of the Ordinance. The judgment demonstrates that administrative functionaries must determine jurisdictional prerequisites as points in limine, though their determinations remain subject to judicial review. It also illustrates the approach courts take to mootness where the factual position changes during pending appeals, particularly where administrative processes remain incomplete. The case emphasizes substance over form in determining the validity of internal appeals where the appellant's intention is clear despite incorrect identification of the legislative route.