Tridevco (Pty) Ltd and Another v Minister of Agriculture, Land Reform & Rural Development and Others

The appellants, Tridevco (Pty) Ltd and Witfontein X16 Boerdery CC, own property known as the Remainder of Portion 5 of Farm Witfontein X16 (the property). The property falls within the Ekurhuleni Urban Edge and forms part of the municipality’s Strategic Development projects surrounding the Oliver Tambo International Airport. The appellants applied to the Minister’s Delegate on 24 April 2019 for consent to subdivide the property to establish a mixed-use township. The Delegate refused the application on 5 August 2019 on the basis that the land was high-potential agricultural land that should be preserved for food security. On 7 November 2019, the appellants appealed to the Minister, who rejected the appeal on 1 October 2020 for similar reasons. The appellants then launched proceedings in the Gauteng High Court, Pretoria, seeking a declarator that the property does not constitute ‘agricultural land’ in terms of s 1(a) of the Subdivision of Agricultural Land Act 70 of 1970 (SALA), alternatively to review and set aside the Minister’s refusal. The high court dismissed both claims and granted leave to appeal. The property was historically used for agriculture and was included in the 1975 Peri-Urban Areas Town Planning Scheme with an ‘undetermined’ zoning, but did not fall within an area where a local area committee (LAC) was established under the Transvaal Board for the Development of Peri-Urban Areas Ordinance 20 of 1943.

• Whether the property falls within the definition of ‘agricultural land’ in s 1(a) of the Subdivision of Agricultural Land Act 70 of 1970 (SALA).
• Whether the conjunction ‘and’ in s 1(a) of SALA, connecting the health board/health committee exception to the local area committee (LAC) exception, is conjunctive or disjunctive.
• Whether the Minister’s decision to refuse consent to subdivide was rational and reasonable.
• Whether the Minister failed in her constitutional duty of co-operative government by not consulting the Ekurhuleni Metropolitan Municipality before making her decision.
• Whether the Minister failed to take into account relevant considerations, including the municipality’s constitutional developmental obligations and the Urban Edge designation.

The appeal succeeds in part. The application for a declarator is dismissed. The Minister’s decision of 1 October 2020 refusing the subdivision is reviewed and set aside. The subdivision application is referred back to the Minister for reconsideration. The Minister is to pay fifty percent of the costs in the Supreme Court of Appeal, including the costs of two counsel where so employed, as well as the appellants’ costs in the high court, including the costs of two counsel where so employed.

1. In terms of s 1(a) of the Subdivision of Agricultural Land Act 70 of 1970, the word ‘and’ connecting the exception for land situated in the area of jurisdiction of a health board or health committee with the exception for land forming part of an area in which a local area committee was established is conjunctive; accordingly, land must fall within both categories to be exempt from the definition of agricultural land. 2. An administrative decision by a national Minister refusing consent to subdivide land is reviewable on the grounds of irrationality and unreasonableness where the Minister failed to consult the affected municipality in terms of s 41(1)(h)(iii) of the Constitution and failed to consider the municipality’s constitutional obligations under ss 152 and 153 of the Constitution, including its Integrated Development Plan and relevant spatial planning frameworks.

1. Observations regarding the historical context of the Transvaal Board for the Development of Peri-Urban Areas Ordinance 20 of 1943 and the socio-economic conditions that led to its enactment. 2. The majority’s observations on the inapplicability of s 84(1)(f) of the Republic of South Africa Constitution Act 32 of 1961 to the interpretation of SALA. 3. The majority’s remarks distinguishing the decision in Pine Glow Investments (Pty) Ltd v Makhado Rainbow Trout CC and Others as factually distinguishable and of no assistance. 4. Unterhalter JA’s separate judgment, which provides an alternative interpretation of s 1(a) of SALA and an analysis of the 1961 Constitution’s conception of local government as contextual background, but which does not form part of the majority’s binding reasoning.

The judgment is significant for its interpretation of the definition of ‘agricultural land’ under SALA, clarifying that the statutory exclusion for land under a health board is cumulative with the requirement that a local area committee was established. It affirms the primacy of purposive and contextual statutory interpretation in determining legislative intent. The case is also important for reinforcing the constitutional principle of co-operative government, holding that national departments must consult affected municipalities and take into account their constitutional developmental obligations and integrated development plans before making administrative decisions that affect municipal planning and land-use objectives.