Dykema v Malebane and Another

In February 2012, four months before the expiry of the suspension of constitutional invalidity of Chapters V and VI of the Development Facilitation Act 67 of 1995 (DFA), Mr Dykema applied to the Limpopo Development Tribunal for planning permission to establish a service station. The Tribunal held hearings between April and June 2012 but only delivered its decision approving the application on 1 November 2012, after the suspension period had expired on 17 June 2012. The Municipality refused to give effect to the decision, informing Mr Dykema to lodge a fresh application. Mr Malebane subsequently applied to develop a competing service station. Mr Dykema sought an interdict and mandamus to compel the Municipality to finalize his application. The Constitutional Court in Johannesburg Metropolitan Municipality v Gauteng Development Tribunal [2010] ZACC 11 had declared Chapters V and VI of the DFA unconstitutional and suspended the declaration of invalidity for 24 months to allow Parliament to enact remedial legislation. Parliament failed to pass such legislation before the suspension expired, creating a three-year legislative gap until the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) came into effect on 1 July 2015.

• What is the legal status of development applications submitted to Provincial Development Tribunals before the expiry of the suspension of invalidity on 17 June 2012 but decided after that date?
• Are such applications 'pending' within the meaning of section 60(2)(a) of SPLUMA?
• What are the legal consequences of the expiration of a suspended declaration of invalidity when Parliament fails to enact remedial legislation?
• Must applications submitted but not finalized during the suspension period be disposed of in terms of SPLUMA?
• What is the proper interpretation of a court order suspending a declaration of invalidity in light of the judgment's reasoning?

1. Leave to appeal is granted. 2. The appeal is upheld and the order of the Supreme Court of Appeal is set aside. 3. Mr Dykema's application submitted in terms of the Development Facilitation Act 67 of 1995 is declared to be 'pending' under section 60(2)(a) of the Spatial Planning and Land Use Management Act 16 of 2013 and must accordingly be disposed of in the manner prescribed by section 60 of SPLUMA. 4. Each party is to pay its own costs, both in this Court and in respect of the litigation in the High Court and the Supreme Court of Appeal.

Applications validly submitted to Provincial Development Tribunals during the period of suspension of a declaration of invalidity remain valid and 'pending' after the suspension expires, notwithstanding that the Tribunal thereafter lacks competence to decide them. Such applications fall within the meaning of applications 'that have not been decided or otherwise disposed of' in section 60(2)(a) of SPLUMA and must be disposed of in terms of that Act. The fate of a validly submitted application does not depend on the continued competence of the original decision-maker; an application can be 'pending' for purposes of transitional legislation even where the original decision-maker no longer has authority. The rationale for a suspended declaration of invalidity - to preserve rights and avoid administrative disruption - informs the interpretation of the legal consequences when the suspension expires without remedial legislation. Courts must interpret legislation purposively to promote the spirit, purport and objects of the Bill of Rights, including the right to just administrative action.

The Court noted that Parliament's failure to enact remedial legislation before the expiry of the suspension was an inexcusable breach of its constitutional duty to comply with the Court's order in terms of sections 165(4) and (5) of the Constitution. This failure was aggravated by the Department's misleading policy statement directing Tribunals to continue finalizing applications after the expiration date. The Court acknowledged that its own order in Gauteng Development Tribunal did not anticipate or provide a backstop for the consequences of Parliament's failure, stating 'our own best laid plan that has gone awry' and 'the unintended consequences of this Court's judgment in Gauteng Development Tribunal need to be unravelled here.' The Court expressed some openness to considering travaux préparatoires (legislative drafting history) in statutory interpretation, noting traditional judicial reluctance but also recent instances where this Court has drawn on such materials with circumspection, though finding it unnecessary to delve deeply into such materials in this case. The Court cautioned against describing unlawful administrative decisions as 'nullities' without proper consideration of the Oudekraal/Kirland doctrine, though this issue was not directly before the Court as Mr Dykema did not cross-appeal on this point.

This judgment clarifies the legal consequences when a suspension of a declaration of invalidity expires without remedial legislation being enacted, despite the Constitutional Court anticipating such legislation. It establishes that applications validly submitted during a suspension period do not automatically become invalid when the suspension expires, but rather remain 'pending' for resolution under subsequently enacted remedial legislation. The case demonstrates the Constitutional Court's commitment to purposive interpretation that protects rights and avoids arbitrary outcomes, particularly administrative law rights. It also illustrates judicial recognition of unintended consequences of court orders and willingness to clarify those consequences in subsequent litigation. The judgment has practical significance for numerous land development applications caught in the legislative gap between the DFA and SPLUMA. It affirms the importance of interpreting legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights, including the right to just administrative action in section 33 of the Constitution.