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Condonation applications

8 May 2014

Introduction
In Minister of Local Government, Environmental Affairs and Development Planning Western Cape v The City of Cape Town & Others [2014] ZACC 9 ("the Habitat case") it was held that certain provisions of the Land Use and Planning Ordinance 15 of 1985, which is effective only in certain provinces (not including Gauteng), were invalid.

These provisions dealt with the power of a provincial authority to review and set aside and substitute municipal planning decisions on appeal. Although this ordinance was not applicable in Gauteng, the principles upon which the court concluded that it must be set aside, apply equally to Gauteng, and so one must question whether the equivalent legislation that applies to Gauteng must or will suffer the same fate, and what the consequences of this could be.

Equivalent Gauteng Legislation
The Gauteng equivalent of the ordinance struck down by the Constitutional Court in the Habitat case, is the Transvaal Town Planning and Townships Ordinance 15 of 1986. This must be read together with the Local Government: Municipal Property Rates Act 6 of 2004 (“the Rates Act”). Both of these pieces of legislation contain provisions that confer a power on the provincial government (or in one case a Minister of State) to review and change or set aside municipal planning decisions.

The meaning of ‘planning’
Before the potential impact of the Habitat case can be explained, one needs to understand what kinds of decisions are involved and which might potentially be affected. In the Habitat case, the court described the function of ‘municipal planning’ as including the zoning of land and the establishment of townships’. It also included subdivision decisions within the scope of municipal planning competencies, as well as building densities and wall heights. These are “best left for municipal determination” (paragraph 14).

The central issue in the Habitat case was whether the power afforded to the provincial government to review municipal planning decisions, set them aside, or change them, offended the constitutional principle of separation of competencies for municipal and provincial governmental spheres. On the one hand it was argued that only municipalities are suited and lawfully able to make planning decisions, and on the other hand it was argued that for various reasons the provincial government had overlapping competencies to decide appeals from all or some types of planning decisions taken by municipalities.

The court ultimately dispensed with all of the latter type of arguments, by referring back to the constitutional principle of separate competencies for the three tiers of government, and held that the ordinance applicable in the Cape was unconstitutional to the extent that it empowered a provincial government authority to review, set aside or change municipal planning decisions.

The meaning of ‘appeal’
The court did not look closely at what was meant by ‘appeal’, but the word has a relatively certain legal meaning, which entails a re-hearing of the application, that may in certain instances be supplemented by additional evidence/argument, and in which the appeal authority has the power to change the decision taken by the original administrator (decision maker).

Appeals to province in terms of Gauteng legislation
In terms of the Rates Act, application for condonation for the failure to comply with any time period set out in the Rates Act can be made to the MEC (Member of Executive Council) for local government in a province. Practically speaking, a person who has failed to submit a municipal property valuation objection or appeal within the prescribed periods can apply to the MEC for permission to submit their objection/appeal late. The City of Johannesburg’s valuations department and the Municipal Valuer for Johannesburg do not, on principle, allow late submissions. This is thus a very important example of a power given to a provincial authority to override the decision of the local (municipal) authority – namely, to allow the objector/appellant concerned to submit a late objection/appeal, where the municipal refuses to allow same.

Relevance of application to MEC
When a municipal property valuation is published on a roll, unless it is set aside by the Municipal Valuer on objection, or by the Appeals Board on appeal/review, it will apply for the life of that roll (which is a minimum of 4 and a maximum of 5 years, in terms of the Act). The window periods to file objections/appeals are quite narrow – from 30 to 45 days on average. If an objector/appellant thus misses the opportunity to object/appeal for whatever reason, and is not afforded any additional opportunity to apply for permission to file late, that (incorrect) municipal property valuation will apply for the life of the roll, and the owner will then pay rates on that (presumably inflated) valuation. Because rates are calculated on the municipal property valuation, the result will be that the owner will have to pay inflated rates for the life of that roll.

There is another procedure (known as a section 78 enquiry) that an aggrieved objector/appellant can follow, but a discussion of this procedure lies beyond the scope of this article.

Does this mean it is no longer possible to apply to the MEC for permission to file an objection/appeal late?
If a court finds that the condonation process is tantamount to an appeal, then yes, this process is no longer available to an aggrieved consumer (or rather, will no longer be available once a court case is brought to strike down this provision, on the same basis as the provisions of the Cape ordinance in the Habitat case were struck down). This would mean that such consumer’s only recourse (barring the section 78 enquiry referred to above) would be to bring an application to the High Court for a review of the municipality’s refusal to allow it to file its objection/appeal late.

Practical implications
The application to the MEC is a relatively simple and informal application, which consists of the writing of a letter asking for permission to file late. This will then be replaced with a lengthy and expensive court application to a High Court. So the fact that this procedure may no longer be available is not good news for consumers.

However, in our experience, the MEC generally tends to reject applications for permission to file late, on the basis that the consumer filed late – and as circuitous as this reasoning is, the only way to overturn this decision is to apply to the High Court to review it and set it aside, which costs a lot. So this remedy really isn’t a very practical or useful remedy at all, and when (if) it goes, it won’t really be all that much of a loss. In addition, new legislation is being written that will rework the entire procedure, and provide other (presumably lawful and more practical) solutions to consumers who want to apply for permission to file late. When this legislation is passed, it will alleviate the prejudice that consumers would suffer if the condonation application procedure to the MEC is done away with.

However, until such time as a court strikes down the equivalent provisions of the Gauteng legislation that provide for this process to the MEC, it will continue to exist and be available to aggrieved consumers.

Thando Mabasa, Candidate Attorney
Co-Authored by Chantelle Gladwin, Partner
Schindlers

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