THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1054/2017

In the matter between:
ARTHUR PULE MALEBANE

APPELLANT
and
ALBERT DYKEMA

FIRST RESPONDENT
BELA-BELA LOCAL MUNICIPALITY  SECOND RESPONDENT
Neutral citation: Malebane v Dykema (1054/2017) [2018] ZASCA 174
(3 December 2018)
Coram:
WALLIS, SWAIN, DAMBUZA and SCHIPPERS JJA and
MOTHLE AJA

Heard:
20 NOVEMBER 2018
Delivered: 3 DECEMBER 2018
Summary: Development application in terms of Chapters V and VI of
the Development Facilitation Act – not determined before date on which
suspension of order of constitutional invalidity in respect of those
provisions ended – s 60(2)(a) of Spatial Planning and Land Use
Management Act 16 of 2013 – whether application pending before
development tribunal on 1 July 2015.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Cassim
AJ, sitting as court of first instance):
The appeal is upheld with costs.
The order of the high court is set aside and the following order
substituted:
‘The application is dismissed with costs.’
The cross appeal is dismissed with costs.

JUDGMENT

Wallis JA (Swain, Dambuza and Schippers JJA concurring)
[1] The appellant, Mr Malebane, and the first respondent, Mr Dykema,
own farms that straddle the N1 highway running north from Tshwane
through Bela-Bela and Mokopane to Polokwane. Both farms are situated
within the area of jurisdiction of the Bela-Bela Municipality (the
Municipality). Some years ago Mr Dykema (with the support of one of
the major oil companies) decided that his farm provided a suitable
location for a One Stop service station. On 10 February 2012 he lodged
an application with the Limpopo Development Tribunal (the Tribunal) for
planning permission for such a service station. This involved a change in
land use from agricultural and general to special under Land Use Zone 85
in terms of the Bela-Bela Land Use Scheme, 2008. The application was
duly advertised and the Tribunal held various hearings between 13 April

and 5 June 2012. It set 16 July 2012 as the date for submission of final
argument on Mr Dykema’s application.

[2] On 18 June 2010 the Constitutional Court1 endorsed a finding of
this Court2 that Chapters V and VI of the Development Facilitation Act
67 of 1995 (the DFA), under which Mr Dykema’s application had been
made, were unconstitutional. The Constitutional Court suspended its
order of invalidity for two years to enable the legislature to remedy the
constitutional defect. The order of suspension expired on 17 June 2012,
without fresh legislation having been passed.

[3] After the expiry of the period of suspension of constitutional
invalidity, development tribunals throughout South Africa, including the
Tribunal, continued dealing with applications for developmental approval
lodged prior to the date of expiry. They did so on the basis of a Policy
Statement issued by the Department of Rural Development Land
Reform.3 In Shelton this court held that, once the period of suspension
expired, the order of constitutional invalidity came into effect.
Consequently the approval of a development application by a
Development Tribunal after 17 June 2012 was invalid. It held that the
policy statement was incorrect and inconsistent with the declaration of
invalidity made by the Constitutional Court. The decision in Shelton was
reaffirmed in Patmar.4

1 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (Gauteng
Development Tribunal (CC)) [2010] ZACC 11; 2010 (6) SA 182 (CC).
2 Johannesburg Municipality v Gauteng Development Tribunal and Others [2009] ZASCA 106; 2010
(2) SA 554 (SCA).
3 See Shelton and another v Eastern Cape Development Tribunal and others [2016] ZASCA 125
(Shelton), para 18.
4 Patmar Explorations (Pty) Limited v Limpopo Development Tribunal [2018] ZASCA 19; 2018 (4) SA
107 (SCA).

[4] The present dispute arises because the Tribunal handed down a
decision approving Mr Dykema’s application, on 1 November 2012. The
Municipality was rightly unwilling to give effect to that decision and
required Mr Dykema to bring a fresh application for rezoning under the
relevant planning legislation other than the DFA. Endeavours by his
advisers to persuade the Municipality to adopt a different approach
proved unsuccessful. In the meantime Mr Malebane (with the assistance
of a different oil company) conceived of the idea of developing a similar
service station on his property and applied to the Municipality for the
necessary planning approvals. This caused Mr Dykema to approach the
high court for an interim interdict preventing the Municipality from
approving Mr Malebane’s application and for an order that it process his
application in accordance with the approval granted by the tribunal on
1 November 2012.

[5] The application came before Cassim AJ. He refused to grant the
declaratory orders sought by Mr Dykema. He did so on the simple basis
that their underlying postulate was that the Tribunal had lawfully
approved his application, whereas in the light of the decision in Shelton,
the purported approval on 1 November 2012 was invalid and a nullity. It
might have been thought that this would dispose of the matter. However,
without any prayer for that relief, the acting judge granted an order
directing the municipality to process Mr Dykema’s application for a
change of land use and dispose of it in accordance with the provisions of
s 60(2)(a) of the replacement legislation, the Spatial Planning and Land
Use Management Act 16 of 2013 (SPLUMA). This legislation was
passed in 2013 and promulgated on 5 August 2013, but only came into a
force on 1 July 2015. Although there is little reasoning on the point in the
judgment it appears that the acting judge proceeded on the footing that

the application had been pending before a tribunal in terms of s 15 of
DFA ‘at the commencement of this Act’ and had not been decided or
otherwise disposed of. The appeal is with his leave and there is a cross
appeal by Mr Dykema in respect of an adverse costs order made against
him.

The issues
[6] Mr Dykema did not seek to contend that the Tribunal’s approval
of his application on 1 November 2012 was either lawful or valid. Instead
the heads of argument on his behalf advanced two arguments in support
of the judgment of the high court. The first was that, notwithstanding the
fact that the Tribunal lacked any lawful authority to approve Mr
Dykema’s application, until set aside by a court of law, it remained valid
and binding. Reliance was placed upon the judgments of the
Constitutional Court in Merafong5 and Tasima.6 The second was that at
the date upon which the order of constitutional invalidity came into effect
he had an application pending before the Tribunal and s 60(2)(a) of
SPLUMA provided that all applications pending before a tribunal at the
commencement of that Act had to be continued and disposed of in terms
of SPLUMA.

[7] Mr Erasmus SC, who appeared in this court with Mr van Heerden,
in place of counsel who prepared the heads of argument, correctly did not
pursue the first argument. Although not framed as a review of the
decision of the Tribunal, the effect of the judgment was to set aside its
decision. Nothing more need be said about that. The only question we

5 Merafong City Local Municipality v AngloGold Ashanti Ltd [2016] ZACC 35; 2017 (2) SA 211 (CC).
6 Department of Transport and Others v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC).

have to decide is whether the high court correctly granted relief on the
basis of the provisions of SPLUMA. Mr du Plessis SC, on behalf of Mr
Malebane, pointed out that Mr Dykema had not asked for such relief, but
said that, in the interests of having the point determined and resolving the
matter, he was not raising a procedural objection to the grant of that
relief. I accordingly turn to deal with that issue.

The arguments
[8] Whether Mr Dykema’s application was pending when SPLUMA
came into force on 1 July 2015, depends on s 60(2)(a) of SPLUMA,
which reads as follows:
‘All applications, appeals or other matters pending before a tribunal in terms of
section 15 of the Development Facilitation Act, 1995 . . . at the commencement of this
Act that have not been decided or otherwise disposed of, must be continued and
disposed of in terms of this Act.’

[9] The argument on behalf of Mr Dykema was that, at the date upon
which the declaration of constitutional invalidity came into operation, he
had an application for a change of land use pending before the Tribunal.
All steps taken by the Tribunal after that date were invalid in accordance
with the decision in Shelton. That left his application pending when the
Tribunal lost its powers to determine it and it remained pending when
SPLUMA came into force on 1 July 2015. Accordingly it fell to be
continued and disposed of in terms of SPLUMA.

[10]  Mr du Plessis SC submitted that there were several flaws in this
analysis. His starting point was the principle of objective constitutional

invalidity.7 The effect of a declaration of constitutional invalidity is that
the legislation in question is invalid from the time of its enactment,
subject to the Court’s power under s 172(1)(b) of the Constitution to
suspend an order for invalidity for any period to enable the legislature to
remedy the defect and to limit the retrospective effect of the order of
invalidity. In Gauteng Development Tribunal the Constitutional Court
exercised both of these powers. It suspended the declaration of invalidity
for two years until 17 June 2012. Recognising that the legislature might
not pass amending or new legislation within that time frame it limited the
retrospective effect of its order.

[11] It is helpful to look closely at what the Constitutional Court
ordered with a view to avoiding undesirable consequences flowing from
the order of invalidity. It said in regard to the period of suspension that:8
‘A proper balance  … may be achieved by allowing the tribunals to continue
exercising those powers during the period of suspension’. (My emphasis.)
The emphasised portion of this passage shows that the Court was only
affording powers to development tribunals during the period of
suspension and not thereafter. Recognising that remedial legislation
might not be passed within the two year period afforded by the
suspension of the declaration, the Court held:9
‘Finally, a necessary feature of this suspended declaration of invalidity is that it
should not have retrospective effect if the period of suspension expires without the
defects in the Act having been corrected. In exercising their powers under the
impugned
chapters,
development tribunals
have
approved
countless
land
developments across the country. It would not be just and equitable for these
decisions to be invalidated if the declaration of invalidity comes into force.’

7 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO 1996 (1) SA 984 (CC) paras 27
and 28.
8 Gauteng Development Tribunal (CC), para 81, p 209I-210A.
9 Gauteng Development Tribunal (CC), para 85.

There is a problem with this somewhat cryptic statement in that the
Constitutional Court did not thereafter make any order limiting the
retrospectivity of its order. However, the case has been argued before us
on the footing that this was the effect of the Court’s order.

[12]  Mr du Plessis submitted that, notwithstanding the absence of a
specific order, the effect of the judgment in Gauteng Development
Tribunal was to maintain in force all the approvals of land developments
granted by development tribunals up until the date upon which the order
of suspension expired. As far as applications lodged before the expiry
date, but not disposed of before that date were concerned, they lapsed and
became invalid. His reasoning was that as the jurisdiction the tribunals
had previously exercised was constitutionally invalid from inception so
were undetermined applications. They were applications for approval
submitted to a body that in law had no power to approve them and
accordingly they were invalid in the same way as the relevant chapters of
the DFA were invalid.

[13]   Mr du Plessis accordingly submitted that Mr Dykema’s
application was no longer in existence, much less pending, when
SPLUMA came into force. He drew attention to the fact that s 60(1) of
SPLUMA dealt with the consequences of the repeal of the DFA and not
the consequences of the constitutional invalidity of chapters V and VI.
Accordingly it could not save Mr Dykema’s application from invalidity.
In any event a pending application meant one ‘remaining undecided;
awaiting decision or settlement’. In view of the fact that after 17 June
2012 the Tribunal no longer had the power to decide the application it
ceased to be pending at that stage.

Was there a pending application?
[14] The question for decision is whether Mr Dykema’s application was
pending before the Tribunal on 1 July 2015, notwithstanding that on 17
June 2012 the Tribunal had ceased to have any authority to determine it.
The short answer is ‘No’. The Concise Oxford Dictionary defines
‘pending’ as meaning ‘awaiting decision or settlement’. The rather longer
definition in the Shorter Oxford English Dictionary is ‘remaining
undecided, awaiting settlement; orig of a lawsuit’. The Collins English
Dictionary says that ‘if something such as a legal procedure is pending, it
is waiting to be dealt with or settled’. The position is no different in
American English. The Merriam-Webster dictionary gives as the
definition of pending in its adjectival sense ‘not yet decided: being in
continuance’. Black’s Legal Dictionary10 has ‘Remaining undecided;
awaiting decision <a pending case>’. Implicit in each of these definitions
is that what is pending is still capable of being determined, which had
ceased to be the case with Mr Dykema’s application.

[15] The case law, both here and overseas, is to the same effect. In
Mhlungu, Kentridge AJ in the Constitutional Court said, in regard to the
transitional provisions in the Interim Constitution, that the normal
meaning of pending is that proceedings ‘are pending if they have begun
but not yet finished’.11 In Nkosi12 Spoelstra J referred to dictionary
definitions to the same effect as those I have quoted and said:
‘It applies to a matter that has commenced and is not yet finalised.’13

10 Bryan A Garner (ed) Black’s Legal Dictionary (9 ed, 2009) p 1248 sv ‘pending’.
11 S v Mhlungu and Others 1995 (3) SA 867 (CC). Although this was a minority judgment there was
nothing in the other judgments that suggested it was incorrect.
12 Nkosi v Barlow NO en Andere 1984 (3) SA 148 (T) at 154A-B.
13 I translate from the original, which read: ‘ Dit dui dus op ŉ aangeleentheid wat begin het en nog nie
gefinaliseer is nie.’ See also Noah v Union National South British Insurance Co Ltd 1979 (1) SA 330
(T) at 332B-C.

That case, like most of the reported decisions I have consulted, was
dealing with the stage at which a matter became pending, rather than
whether an application can be pending before an administrative body
after that body has ceased to have the power to determine it. However
there are clear statements in some instances to the effect that a matter is
pending only for so long as the court or tribunal before which it was
brought is capable of making an order in relation to it.

[16] That a legal suit, or an application to an administrative tribunal,
such as Mr Dykema’s to the Tribunal, is only pending if the court or
administrative tribunal still has the power to hear and dispose of it
appears clearly from two cases, the one from Canada and the other from
New Zealand.14 In Garnham v Tessier15 it was said:
‘”Litigation pending”, as here used means any legal proceeding, suit or action
remaining undecided or awaiting decision or settlement.’
The following statement appears in National Bank of New Zealand Ltd v
Chapman:16
‘A legal proceeding can be said to be “pending” as soon as it has been commenced
and it remains pending until it has been concluded, that is, so long as the court having
original cognizance of it can make an order on the matters in issue, or to be dealt
with, therein.’ (My emphasis.)
I am satisfied that these statements correctly reflect the meaning of
pending in the present context.

[17] It was common cause between counsel that from 17 June 2012 the
Tribunal lacked any power to make an order on Mr Dykema’s

14  Cited in Words and Phrases Legally Defined (3 ed, 1989) p 344, sv ‘pending’.
15 Garnham v Tessier  (1959) 27 WWR 682 at 688, Man CA.
16 National Bank of New Zealand Ltd v Chapman [1975] 1 NZLR 480 at 482. This judgment appears to
be the source of the corresponding statement in Stroud’s Judicial Dictionary of Words and Phrases (7
ed, 2006) Vol 3, p 194, sv ‘pending’.

application. When it purported to do so on 1 November 2012 that was
invalid because the Tribunal acted in terms of legislative provisions that
were constitutionally invalid. In my view nothing could be clearer than
that the application ceased to be pending when the Tribunal lost the
authority to deal with it. The position would have been no different had
the Tribunal been abolished on that date without any provision being
made to deal with applications then pending. An application cannot be
pending in any realistic sense before an administrative body when its
power to grant it has ceased to exist.

[18] Mr Erasmus responded to these difficulties by contending that their
effect was to render the provisions of s 60(2)(a) ineffective and
meaningless. He said that a court does not lightly conclude that a
statutory provision has no meaningful effect.17 Building on that
foundation, he submitted that the only way in which to give the section
effect was to interpret the words ‘pending before a Tribunal … at the
commencement of this Act’ as referring to applications that had been
properly lodged with tribunals prior to 17 June 2012 and not disposed of
before they lost the power to make a decision on them. The implication
was that such applications remained pending notwithstanding the fact that
they could not be dealt with by the Tribunal and notwithstanding that the
legislation envisaged by the Constitutional Court order might not make
any provision for them to be pursued under new or amended legislation.

[19]  The submission faced substantial difficulties in requiring a
distortion of the language of the section and a transition in time of three
years from 17 June 2012 to 1 July 2015. It provided no explanation for

17 National Credit Regulator v Opperman and Others 2013 (2) SA 1 (CC) para 42.

the status of such applications during the intervening period, when other
developers were free to obtain consent for their potentially competing
developments from appropriate authorities, including local authorities
such as Bela-Bela. Nor did it offer an explanation of what would occur in
regard to the application if new or amending legislation made no similar
provision. It contemplated a legal situation in which the application
would become dormant, but possibly revive at an indeterminate future
date, depending on future legislation, the content of which could not be
predicted.

[20] A further problem was that the Bill giving rise to the enactment of
SPLUMA was prepared and published before the expiry of the period of
suspension of constitutional validity. As noted in Shelton, the relevant
government department had issued a policy statement that development
tribunals could continue to dispose of applications lodged with them prior
to the expiry of the suspension of the declaration of constitutional
invalidity. In the light of that, those responsible for drafting SPLUMA
would have anticipated that when it came into force there would be
applications pending, but not yet disposed of, before development
tribunals even if this were after the expiry of the period of suspension.
They might well not have foreseen that there would be a lengthy delay
between the enactment of the legislation and its being brought into
operation. They would certainly not have foreseen that the relevant policy
in terms of which tribunals were continuing to act would be held to be
legally invalid as held in Shelton. That being the case it seems rather
more likely that the transitional provision was put in as a typical

‘boilerplate’ provision18 to deal with whatever transitional situation
existed at the time it came into force.

[21]   Apart from these obvious difficulties, there was a fatal flaw in the
argument, because its underlying premise that otherwise s 60(2)(a) would
have no practical effect was false. The reason is that it overlooked
applications in terms of s 61 in chapter VII of the DFA and the mediation
and appeal provisions in ss 22 to 24 of the DFA. Chapter VII deals with
registration arrangements and was not affected by the declaration of
constitutional invalidity. It is not wholly clear whether s 61 could be
invoked in relation to developments other than those that had first been
the subject of a land development application in terms of Chapters V and
VI of the DFA, but that does not matter. I assume for present purposes
that Chapter VII was only applicable to land registration arrangements in
respect of developments approved by a tribunal under Chapters V and VI.

[22] After a tribunal approved a development under Chapters V and VI,
the developer had to take all the steps necessary to bring the development
to fruition. In the case of a township development this could be a
protracted process. Layout plans would have had to be prepared and
approved; provision for services needed to be made; negotiations with
various authorities would have had to take place in regard to their
requirements in relation to the nature and extent of servitudes for service
provision, such as water, electricity and sewage reticulation; there would
have needed to be compliance with the conditions of establishment. Many
other steps can be envisaged and all of these would need to take time and
money. Furthermore the rate of progress of the development would have

18 See Mhlungu, op cit, paras 22-23 and 26 (per Mahomed J) and para 75 (per Kentridge AJ).

had to take account of conditions in the property market and the ability to
sell the resulting stands in the township.

[23] Once the developer was ready to proceed to opening a township
register it could apply to the relevant tribunal for the approval of a
registration arrangement under s 61(1) of the DFA. The tribunal would
then consider the application. Section 61 required it to be satisfied that
there had been compliance with the requirements of s 38 of the DFA and
certain other statutory requirements. It would then either grant the
application, with or without conditions, or refuse it. Any decision made
by the tribunal would be subject to appeal to a development appeal
tribunal in terms of s 23 of the DFA.

[24] It is perfectly conceivable that an applicant for development
approval might have obtained such approval in early June 2012 before the
declaration of invalidity came into effect. For the reasons dealt with in
para 11 of this judgment, the approval would have remained valid and
unaffected by the declaration of invalidity. If it then took the developer
eighteen months or two years before being ready to submit an application
for a registration arrangement, and the application was delayed while the
tribunal was satisfying itself that all the requirements for granting a
registration arrangement were satisfied, it is readily conceivable that such
an application could have been outstanding on 1 July 2015. Equally if the
tribunal approved the registration arrangement subject to conditions that
the developer did not wish to accept, there could have been an appeal to a
development appeal tribunal under s 23, read with s 16(a), of the DFA.

[25] The point of this example is to demonstrate that, entirely apart
from applications under chapters V and VI of the DFA, there was

undoubtedly scope for there to have been applications, appeals or other
matters pending before a tribunal when SPLUMA came into operation on
1 July 2015. That being so the foundation for Mr Erasmus’ argument fell
away. It is unnecessary to give a strained interpretation to s 60(2)(a) in
order to provide the section with a practical purpose.

[26] I have now had the opportunity to read the judgment by Mothle
AJA. He holds that, as the Municipality had informed the Tribunal, while
the latter was considering Mr Dykema’s application, that it supported the
change in land use, ‘that approval is protected’ by the decision of the
Constitutional Court that land development approvals by tribunals would
not be invalidated if the declaration of invalidity came into operation
without the defects in the DFA having been corrected.19 The Municipality
had an obligation to give effect to Mr Dykema’s right to just
administrative action by considering his application, but instead delayed
and required him to submit a fresh application. The DFA did not put any
time limit on applications to it. Either the application was still pending
when SPLUMA came into operation in 2015 or it ‘must be accepted as
having resuscitated such applications and given them a life line’. In his
view it was in the interests of justice to grant the relief granted by the
high court.

[27] I am unable to agree with this reasoning. Mr Dykema’s application
proceeded from the premise that the Tribunal had lawfully approved his
application. In his own words the purpose of the relief sought was to
‘give effect to the approved land use rights of the Applicant’. That was a

19 Gauteng Development Tribunal (CC), para 83. As noted in para 11 of this judgment the Court made
no orderr in that regard.

reference to the Tribunal’s approval of his application in November 2012.
When his planners approached the Municipality in 2013, it was on the
basis that he would withdraw his DFA application and resubmit it to the
Municipality under the Ordinance. The rider was that the latter would
agree that it would be unnecessary to re-advertise the application or
follow the procedures under the applicable Ordinance. This would, so he
said, enable the Municipality to ‘promulgate the approved land use rights
in terms of the Ordinance’. He sought to interdict the Municipality from
processing Mr Malebane’s application because it was not ‘processable’ in
the light of the DFA approval of his application. In summing up his case
Mr Dykema said that he was ‘the beneficiary of a formal land use change
approval issued by the DFA Tribunal’.

[28]    Nowhere in the application papers, or the arguments addressed in
this court and the high court, was there any suggestion that the
Municipality’s willingness in 2012 to approve a change of land use for
Mr Dykema, conferred any rights upon him as against the Municipality.
Nor did he complain that the Municipality infringed his rights to just
administrative action. He accepted that the Municipality had a discretion
whether to adopt the route proposed by his town planner. He did not
suggest that its refusal to exercise that discretion in his favour was
unlawful and, in any event, would have had to bring separate review
proceedings under PAJA if that was his case. In those circumstances
where no allegations were made against the Municipality that it was in
breach of obligations owed to Mr Dykema, or that its past conduct
amounted to a binding decision to approve a change in land use, the
Municipality understandably abided the decision of the court on Mr
Dykema’s application. Mothle AJA’s approach would condemn it on
grounds forming no part of the case made by Mr Dykema in

circumstances where the Municipality has had no opportunity to defend
itself. That is impermissible.

[29]  My colleague accepts that the decision by the Tribunal in
November 2012 was invalid. He also accepts that after 17 June 2012 the
Tribunal no longer had any statutory authority to deal with Mr Dykema’s
application under the DFA. The Constitutional Court’s decision on
retrospectivity meant that tribunal planning decisions already made and
affording rights to applicants were not invalidated. The same did not
apply to people in the position of Mr Dykema, as recognised by him in
his approaches to the Municipality and his proposal that he submit an
application under the Ordinance for approval. I have given my reasons for
saying that the DFA application was not pending when SPLUMA came
into operation. The suggestion that it was ‘resuscitated’ is a novel one and
not one advanced by leading counsel for Mr Dykema. In my view it is
unsound. Mr Malebane correctly pointed out that, when he lodged his
application in 2015, circumstances would have changed since Mr
Dykema’s original application – not least because there were now
competing applications – and a fair administrative process required the
Municipality to weigh up the applications in the light of the change in
circumstance.20

[30] For those reasons the appeal must succeed. I make the following
order:
The appeal is upheld with costs.
The order of the high court is set aside and the following order
substituted:

20 Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA) paras 23 to 25.

‘The application is dismissed with costs.’
The cross appeal is dismissed with costs.

___________________________
M J D WALLIS
JUDGE OF APPEAL
MOTHLE AJA (Dissenting)
[31] I have read the judgment of Wallis JA (the first judgment). I
respectfully disagree with the analysis and the conclusion reached in the
first judgment. In my view the applications that were lodged and not
finalised (the pending applications) in terms of the now repealed
Development Facilitation Act 67 of 1995 (DFA), have neither lapsed nor
became nullified on expiry of the period of suspension of the declaration
of invalidity, being 17 June 2012 (the date of expiry). On a proper
construction of the Constitutional Court order of the declaration of
invalidity, read with section 60(2)(a) of the Spatial Planning and Land
Use Management Act 16 of 2013 (SPLUMA), I would, for reasons that
follow hereunder, dismiss the appeal with costs, and uphold the cross-
appeal.

[32] A summary of the background facts appears in the first judgment
and will not be repeated in this judgment. Only a short chronology of
events and the salient points will be referred to for purposes of context.
At the centre of this appeal, is the question of the status and fate of the
pending applications from the date of expiry.

[33] The respondent, Mr Dykema’s version of events reveals a sense of
frustration that he had endured, at the hands of the state, mainly Bela-

Bela Local Municipality (the Municipality), the moment he lodged his
application.  A brief chronology of events demonstrates this unfortunate
experience.

[34] On 18 June 2010, the Constitutional Court held that chapters V and
VI of the DFA were invalid. It further ordered that the declaration of
invalidity be suspended for a period of 24 months from date of order.
Most importantly, the Constitutional Court allowed the provincial
tribunals established under DFA and charged with the authority to decide
on applications for land use, to continue with the execution of these
functions during the period of suspension of the order.

[35] In February 2012, four months before the date of expiry, Mr
Dykema lodged his application. His application included documents
which indicated that he had commenced work on the project several
months before the application was lodged with the Limpopo
Development Tribunal (the Tribunal). On receipt of this application, the
Tribunal, in the same month (February 2012), forwarded the application
under cover of a memorandum, requesting comment from the
Municipality.

[36] A
process
of
approximately
three
months
of
internal
communications within the Municipality in order to consider the
application, ensued. Between 17 February 2012 and 7 May 2012, senior
officials of various divisions of the Municipality, starting with Technical
Services on 17 February 2012, through March and April, up to and
including the final signature of the Municipal Manager on 7 May 2012,
all approved Mr Dykema’s application, subject to the project complying
with specified conditions.  Some three months later the application was

returned to the Tribunal which approved it, subject to compliance with
some technical conditions during construction. The Bakwena Platinum
Corridor, the Road Agency of Limpopo as well as the Department of
Agriculture and Fisheries had all approved the application as well. The
Tribunal conducted hearings between 13 April and 5 June 2012, where
evidence was led and expert reports considered. The final leg was to
receive submissions from various legal representatives of the interested
parties and then take a decision. The hearing stood down by agreement
with the parties, for heads of argument to be filed by 16 July 2012.

[37] I pause to mention that on 22 March 2012, three months before the
date of expiry (17 June 2012), the Department of Rural Development and
Land Reform issued a public statement commenting on the progress of
finalising the Spatial Planning and Land Use Management Bill. The
statement gave a directive to all tribunals to consider all applications
pending before them, even after the date of expiry. However, it directed
that no new applications should be accepted as of the date of expiry. An
undertaking was also given in the statement as follows:
‘(b)    Application to the Constitutional Court by the Government for an extension to
the 24 months will be made in time if it is established that no other viable alternative
exists to processing land applications in any part of the country except via the DFA.
(f)       In the North-West, Limpopo, Mpumalanga, Eastern Cape, and Gauteng
Provinces it is important to note that the pre-1995 laws on land development
management remains in the law books. These laws are still in use, and they will
continue to be used until the enactment of the Spatial Planning and Land Use
Management Bill into an Act of Parliament.’

[38] To complete the narrative of Mr Dykema’s plight, I continue with
the chronology of events. After the date of expiry, Mr Dykema’s town
planners continued to engage the Municipality to seek assistance to have

the application finalised. On 10 July 2013, the town planners wrote a
letter to the Municipality, requesting that Mr Dykema’s application be
finalised in terms of section 69(3) of the Town Planning and Townships
Ordinance 15 of 1986 (the Ordinance). The section gives the
Municipality a discretion to process and finalise applications such as
those of Mr Dykema and take a decision.

[39] The Municipality replied to the town planners on 11 August 2014,
more than a year later, in a terse one paragraph response indicating that
Mr Dykema must submit a new application in terms of the Ordinance.
What was alarming about the letter from the Municipality is the following
(a) By then the Municipality had already had a period of three months
(February to May 2012) to consider and approve Mr Dykema’s
application as submitted to it for comment by the Tribunal. The
Municipality in their comment supported the approval of the application;
(b) Mr Dykema’s application, but for the legal representatives’
submission of heads, was almost completed as at the date of expiry. (c)
At the time of their response in August 2014, the Municipality was aware
of a competing application from the appellant, Mr Malebane, for a similar
project on a property situated about 19 kilometres from the proposed site
of Mr Dykema. The documents in the appeal record indicate that as at
May 2014, Mr Malebane had, like Mr Dykema, obtained approvals and
support from the Road Agency and Bakwena .Platinum Corridor; (d) The
Government had not yet promulgated legislation to give direction to the
fate of the pending applications, after the date of expiry as indicated in
the Department’s statement. It had also not approached the Constitutional
Court to request an extension of the date of expiry. That legislation
became a reality in 2015, three years after the date of expiry; (e) Having
been part of the process to consider Mr Dykema’s application, the

Municipality was empowered and in a better position to finalise the
application in July 2013 as per the directive of the Department.

[40] A period of uncertainty and confusion ensued as regards the status
of the pending applications. In Mr Dykema’s case, the confusion was
compounded by the fact that the final approval of his application by the
Tribunal in November 2012 - was invalidated by the effect of two
judgments of this Court21 in 2016 and 2018, after unsuccessful attempts
to obtain cooperation from the Municipality concerning post-approval
procedures.

[41] At the time Mr Dykema approached the high court, he found
himself confronted with an argument from his competitor, Mr Malebane
that his (Mr Dykema’s) application lapsed or was nullified on the date of
expiry when the Tribunal lost the power to consider it. Mr Malebane
contended thus:
‘… the Applicant’s failure to comply with the post-approval obligations stated in the
DFA and its Regulations caused the Applicant’s DFA application to lapse (by
operation of the law) and therefore the approval granted by the LDT lapsed
simultaneously.’

[42] The reference to ‘by operation of the law’ turned out to mean the
declaration of invalidity of the DFA. To put matters in perspective, it is
necessary to examine the nature of the application lodged by Mr Dykema.

21 Shelton v Eastern Cape Development Tribunal [2016] ZASCA 125 and Patmar Explorations (Pty)
Ltd and Others v The Limpopo Development Tribunal and Others [2018] ZASCA 19; 2018 (4) SA 107
(SCA).

[43] Mr Dykema’s application is an exercise of his right to a just
administrative action, as provided for in section 33 of the Constitution.22
He had a legitimate and justified expectation that his application would
be considered and decided upon. The Tribunal in accepting the
application, assumed the obligation to consider and decide on the
application as provided for in s 33(3) (b) and (c) of the Constitution read
with the provisions of the Promotion of Administrative Justice Act 3 of
2000. As at the date of expiry, the pending applications, including those
completed or finalised, were in my view the objects of the applicants’
right to a just administrative decision.

[44] In declaring chapters V and VI of the DFA to be constitutionally
invalid, both this Court and the Constitutional Court effectively removed
the administrative powers of the tribunals to receive, consider and decide
on land use applications.  There is no record that these courts or any
organ of state had declared, or by inferential reasoning had accepted that
the pending applications  lapsed or became nullified. Such a demise of
the pending applications would have, by implication, brought an end to
the applicants’ exercise of their right to just administrative action, without
a decision having been taken, one way or the other, a situation that would
be untenable.

[45] Mr Malebane’s contention conflates instead of separating the
pending applications from the loss of power on the part of the tribunals.
The pending applications, even after submission, remained as the rights
of the applicants who, alone, had the power to decide whether to

22 The Constitution of the Republic of South Africa, 1996. Section 33 reads;

withdraw, abandon or persist with the exercise of their right to a just
administrative action before any newly empowered organ of state. As it
becomes apparent later in this judgment, this view is buttressed by s 60(2)
of SPLUMA.

[46] The Constitutional Court could not have intended for anything
other than the removal of the power of the tribunals to consider and
decide on the applications. This Court in the matter of Johannesburg
Municipality v Gauteng Development Tribunal,23 after declaring chapters
V and VI of the DFA invalid, suspended the declaration of invalidity for a
period of 18 months subject to the following:
‘No development tribunal established under the Act may accept for consideration or
consider any application for the grant or alteration of land use rights in a municipal
area.
No development tribunal established under the Act may on its own
initiative amend any measure that regulates or controls land use within a
municipal area.’

[47] The Constitutional Court upheld the decision of this Court to
declare chapters V and VI of the DFA constitutionally invalid, but set
aside this Court’s order of suspension of the period of invalidity as well
as the conditions of suspension. Instead, the Constitutional Court ordered
in paras 7 and 8 as follows:
‘The declaration of invalidity is suspended for 24 months from the date of this order
to enable Parliament to correct the defects or enact new legislation.
The suspension is subject to the following conditions:

23 This case first came before the Gauteng Local Division of the High Court and was reported in the
law reports under the same name, as follows: High Court  2008 (4) SA 572 (W); SCA 2010 (2) SA 554
(SCA) and Constitutional Court 2010 (6) SA 182 (CC).

(a)
Development Tribunals must consider the applicable integrated-development
plans, including spatial-development frameworks and urban-development
boundaries, when determining applications for the grant or alteration of land use
rights.
(b)
No development tribunal established under the Act may exclude any bylaw or
Act of Parliament from applying to land forming the subject-matter of an
application submitted to it.
(c)
No development tribunal established under the Act may accept and determine
any application for the grant or alteration of land-use rights within the jurisdiction
of the City of Johannesburg Metropolitan Municipality or eThekwini
Municipality, after the date of this order.
(d)
The relevant development tribunals may determine applications in respect of
land falling within the jurisdiction of the City of Johannesburg Metropolitan
Municipality or eThekwini Municipality only if these applications were submitted
to it before the date of this order.’

[48] The conditions of suspension of the orders of this Court sought to
prohibit any receipt and consideration of applications during the period
of suspension of the declaration of invalidity. That would have had the
effect of not only restraining the tribunals from exercising their powers
beyond the date of the order of the declaration of invalidity, but also
prohibiting prospective applicants desiring to submit applications for
consideration during the period of suspension, from doing so. That would
have amounted to a total prohibition on the exercise of their
constitutional right to just administrative action. The Constitutional
Court set that part of this Court’s order aside and protected the right of
citizens to continue submitting applications after the date of the
declaration of invalidity, but limited it to the period of suspension

[49] The exercise of the power to suspend an order of invalidity in
terms of s172 of the Constitution, has to be just and equitable and not
disruptive and result in the deprivation of rights. In Steenkamp NO v
Provincial Tender Board of the Eastern Cape 2007 (3) SA 121 (CC),
paras 28 to 29 the Court stated thus:
‘[S]ince the advent of our constitutional dispensation administrative justice has
become a constitutional imperative. It is an incident of the separation of powers
through which courts review and regulate the exercise of public power. The Bill of
Rights achieves this by conferring on ‘everyone’ a right to lawful administrative
action that must also be reasonable and procedurally fair…’

[50]      In McBride v Minister of Police [2016] ZACC 30; 2016 (2)
SACR 585 (CC) at para 52 the Court stated thus:
‘…In Kruger, the Court preserved the conduct of the Road Accident Fund that had
relied on invalid proclamations. This was to avoid disruption and disorder. There must
be an interest of justice consideration that overrides the presumption of objective
constitutional invalidity.’
These authorities convey a clear message that the purpose of suspension
of an order is not aimed at an infringement of any person’s rights. See
also Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and
Development Appeal Tribunal and others 2016 (3) SA 160 (CC). The
current case makes reference to the KZN case in para 19 of the judgment
of the high court in this case. The high court wrote:
‘In that matter, despite the invalidity of the empowering statute, the Constitutional
Court permitted a tribunal to exercise powers pertaining to land use rights, provided it
did so from the perspective of a Municipality and not from the perspective of a
Province.’

[51] Consequently it would be reasonable to accept that as at the date of
expiry, there may have been a considerable number of applications
lodged, which were at different stages of consideration, some at the

beginning and others towards finality. As at the date of expiry, Mr
Dykema’s application, with the support of the Municipality, was in the
final stages of completion.

[52] The dictates of good governance would have demanded that the
tribunals, immediately transfer the pending applications to the
municipalities on the date of expiry. Alternatively, at worst, with their
powers divested, to return the applications to the applicants.

[53] In the case of Mr Dykema’s application, the Municipality had
already considered and approved it as part of the DFA process of
considering the application. That approval is protected by the
Constitutional Court order as it occurred within the period of suspension.
The Sheldon and Patmar cases invalidated the approval by the Tribunal
in November 2012, correctly so as it was made after the date of expiry.
As at July 2013, the Municipality had a statutory obligation as the State in
terms of s 33(3) (b) of the Constitution, to give effect to Mr Dykema’s
right to a just administrative action by considering his application. It
failed to do so on request, instead replied Mr Dykema one year after his
request and informed him to submit a new application. This response
would have provided an unfair and unreasonable advantage to those
applicants, such as Mr Malebane, who after the date of expiry, had lodged
their applications with the Municipality in terms of the Ordinance. The
Municipality ignored the directive from the national Department.

[54] As the Constitutional Court observed in its judgment, it was
expected of Parliament and the Executive to proclaim remedial legislative
measures to correct the constitutional defect. The fate of the pending

applications was thus left to the Executive and Parliament to deal with. I
now turn to the remedial legislative measures that were introduced.

[55] The
remedial
legislative
framework
envisaged
by
the
Constitutional Court came in the form of SPLUMA, which came in to
operation on 1 July 2015, three years after the date of expiry. Section 60
of SPLUMA provided for transitional provisions. Section 60 (1)
reiterated the protection of the completed applications as stated in para 85
of the judgment of the Constitutional Court in Johannesburg Metropolitan
Municipality case. It is s 60(2)(a) that is of relevance to the fate of the
pending applications. It provides:
‘All applications, appeals or other matters pending before a tribunal in terms of
section 15 of the Development Facilitation Act, 1995 (Act 67 of 1995) at the
commencement of this Act that have not been decided or otherwise disposed of, must
be continued and disposed of in terms of this Act.’

[56] Section 60(2) (d) of SPLUMA further provides that the Minister
may prescribe a date by which the pending applications, appeals or other
matters must be disposed of, and may prescribe arrangements in respect
of such matters not disposed of by that date. The Minister has not yet
made such determination. Mr Dykema’s pending application may still be
submitted as ordered by the high court.

[57] At the time Mr Dykema launched his application before the high
court in November 2015, the provisions of s 60 of SPLUMA had been in
force as at 1 July 2015. If there was still uncertainty or confusion
prevailing on the status of the pending applications, it was clarified by s
60 of SPLUMA. Similarly, if there was any merit in the contention that
the pending applications had lapsed or became nullified, then s 60(2) of

SPLUMA must be accepted as having resuscitated such applications and
had given them a life line as to how they should be disposed of. The
language of s 60(2)(b) is couched in peremptory terms for the
municipalities to consider these applications. To persist with the
argument that the pending applications had lapsed is to render s 60 of
SPLUMA superfluous.

[58] Declaring the pending applications to have lapsed could also have
far reaching implications. This appeal before us, came three years after
the commencement of SPLUMA. It is conceivable that since the
commencement of litigation in this case, other pending applications have
been considered and finalised in terms of s 60(2)(a). It is unclear what the
status of such applications would be if one regards them as having lapsed
or became nullified on the date of expiry. The reality is that the pending
applications would only lapse after they are either withdrawn or
abandoned by the applicants; or disposed of with a decision, one way or
the other by an organ of state having the power to do so.  Parliament
accepted that the pending applications could still be considered by
another organ of state in terms of s 60(2) of SPLUMA.

[59] There is no merit in Mr Malebane’s contention. It cannot be
correct. The purpose and effect of the declaration of invalidity was
limited to the removal of the power of the tribunals to receive, consider
and decide on the applications, not to nullify the applications that were
lodged. The DFA did not put any time frames on the lifespan of the
applications. The suspension was intended to allow the tribunals to
continue providing a service to the public so as to avoid a disruption of
the government’s processes and services. Thus the argument raised by Mr
Malebane that Mr Dykema’s application had lapsed, was based on a false

inferential reasoning that had no support in law or fact. It should be
rejected and the appeal should fail.

[60] Before concluding, something needs to be said about the effect of
the judgments in Shelton and Patmar. This Court was correct in striking
down the decisions taken by the tribunals after the date of expiry as being
ultra vires. The tribunals had no legal authority to continue with the
applications beyond the date of expiry. Similarly, the view expressed by
the Department in its public statement that the tribunals must complete
the remaining applications beyond the date of expiry was incorrect.
However, the striking down of the tribunal’s decisions can only affect
what they did after the date of expiry. Anything they did before the date
of expiry is protected by the order of the Constitutional Court.
Consequently, all applications affected by the Shelton and Patmar
decisions logically revert to their status, whatever it may have been,
before the date of expiry. Mr Dykema need not have contended for the
impugned approval, but should rather have taken his application as it was
on 17 June 2012, and submitted it to the Municipality in terms of s 60(2).

[61] The high court was correct to grant the order it did as it is in the
interests of justice to do so. The order ensures a lawful, reasonable and
procedurally fair administrative action between the parties. I would
therefore dismiss the appeal, uphold the cross appeal and award the costs
of this appeal to the respondent.

______________________
S P MOTHLE
ACTING JUDGE OF APPEAL

Appearances

For appellant:
S J Du Plessis SC
Instructed by:
Kuilman Mundell & Arlow, Johannesburg
Claude Reid Inc, Bloemfontein

For first respondent:
M C Erasmus SC (with him D J van Heerden)

Heads of argument prepared by A Liversage SC
Instructed by:
Adriaan Venter Attorneys & Associates, Pretoria
Rossouws Attorneys, Bloemfontein.