Drift Supersand (Pty) Limited v Mogale City Local Municipality

The second respondent applied to the Mogale City Local Municipality in September 2006 to establish a township on Portion 33 of the farm Roodekrans 183 IQ. The appellant owned three contiguous properties (Portions 79, 80, and 116) in the immediate vicinity of the subject property and conducted quarrying operations there, involving blasting and crushing rock. The appellant's subsidiary held the mining right but the appellant exercised it under verbal agreement. In April 2007, notices of the township application were published but did not come to the appellant's attention. The appellant learned of the application in August 2007 during an environmental consultation process and immediately objected by letter (JH5) detailing concerns about incompatibility with quarrying operations. In June 2011, the Municipality's Mr Van Wyk told the appellant's attorney that the appellant was recorded as an interested party and would be invited to a tribunal hearing. This was confirmed in writing by letter JH7, which the Municipality received but did not respond to. In May 2012, Mr Van Wyk prepared a report stating the application was unopposed. The executive mayor approved the application on 28 August 2012 without convening a tribunal or notifying the appellant. The appellant only learned of approval in October 2012 and sought review in March 2013.

• Whether the appellant, as owner of land in close proximity to proposed township, had standing as an interested person to challenge the establishment of the township
• Whether the administrative process to approve the township was procedurally fair
• Whether the appellant had a legitimate expectation to a hearing before approval was granted
• Whether the Municipality's failure to convene a tribunal hearing constituted a breach of procedural fairness under PAJA
• Whether the appellant was required to exhaust internal appeal remedies under s 104 of the Ordinance before seeking judicial review
• Whether certain allegations in the appellant's replying affidavit should be struck out

The appeal succeeded with costs, including costs of two counsel. The order of the High Court was set aside. The executive mayor's approval of the township application on 28 August 2012 was set aside. The respondents were ordered to pay the appellant's costs jointly and severally, including costs of two counsel. The second respondent's cross-appeal was dismissed with costs to the appellant.

1. A landowner whose property is in the immediate vicinity of a proposed township development has standing as an interested party to challenge the establishment of that township, based on the right to safeguard the amenity of their immediate neighbourhood, regardless of whether the properties share a common boundary. 2. An express assurance by a municipal official that an objector will be invited to a tribunal hearing creates a legitimate expectation under PAJA where the representation is clear, unambiguous, competent, lawful, and induces a reasonable expectation. Failure to honour such an assurance constitutes a breach of procedural fairness under s 3 of PAJA rendering the subsequent administrative decision reviewable under s 6(2)(c). 3. The requirement under s 7(2) of PAJA to exhaust internal remedies does not apply to a person who was excluded from participating in the administrative decision-making process. A party cannot be required to appeal against a decision taken in proceedings in which they were not permitted to participate. 4. Where an administrative functionary fails to place material objections before the decision-maker, the decision-maker does not have a complete picture of the facts and circumstances, resulting in a procedurally unfair decision that must be set aside.

The Court made several significant non-binding observations: 1. On interpretation of "interested party" in s 69(6)(b)(iv) of the Town Planning and Townships Ordinance, the Court expressed doubt about the correctness of Abseq Properties (Pty) Ltd v Maroun Square Shopping Centre which applied the ejusdem generis rule to restrict "interested persons" to entities similar to state organs, suggesting this restrictive approach frustrates constitutional values of public participation. 2. On buffer zones in municipal integrated development plans: The Court observed that even if buffer zone requirements operate only as guidelines rather than binding rules, the closer a proposed development is to incompatible land uses (such as quarries), the greater the imperative for the guideline to be observed, especially where activities like blasting could have substantial adverse effects on residents. 3. On municipal practices distinguishing "objections" from "comments": The Court indicated that whatever the merits of treating only timeous responses as "objections" and late responses as "comments," in substance both should be considered as objections if that reflects their content, and the distinction should not be used to exclude legitimate concerns from consideration. 4. On evidentiary practices: The Court commented adversely on the Municipality's practice of adducing crucial evidence through hearsay allegations in one witness's affidavit supported only by a brief "confirmatory affidavit" from the actual witness, stating that courts are entitled to expect actual witnesses to critical events to depose to those events under oath, particularly where evidence is contentious.

This case is significant for establishing important principles regarding procedural fairness in administrative law, particularly in the context of municipal township approval processes. It clarifies that: 1. Landowners in close proximity to proposed developments have standing as interested parties, not merely those sharing a common boundary. 2. Express assurances by administrative officials create legitimate expectations enforceable through PAJA, and failure to honour such promises renders decisions procedurally unfair. 3. Constitutional values of public participation in local government decision-making require municipalities to interpret procedural requirements generously, not restrictively. 4. The doctrine of exhaustion of remedies under s 7(2) of PAJA does not apply where an applicant was excluded from the administrative process in the first instance. 5. Municipalities have a higher duty to respect procedural requirements and deal respectfully with rights, consistent with constitutional principles of administrative justice. The judgment reinforces the importance of proper consultation and fair procedures in land use planning decisions, and demonstrates the courts' willingness to scrutinize municipal decision-making processes for compliance with PAJA and constitutional requirements.