IN THE HIGH COURT OF ESWATINI
JUDGMENT
Case No. 548/19
In the matter between:
VIP DRY CLEANERS (PTY) LTD 1st APPLICANT
XOLILE ZODWA LILLIAN MASINA 2nd APPLICANT
NOKUPHILA NOMSA KHUMALO 3rd APPLICANT
THABISO MABANDLA MASINA 4th APPLICANT
ANDILE MAJAHONKE MASINA 5th APPLICANT
NOKWANDA PHUMLA MASINA 6th APPLICANT
AND
MINISTER OF HOUSING AND URBAN
DEVELOPMENT 1st RESPONDENT
PRINCIPAL SECRETARY MINISTRY
OF HOUSING AND URBAN DEVELOPMENT 2nd RESPONDENT
MALKERNS TOWN BOARD 3rd RESPONDENT
THE ATTORNEY GENERAL 4th RESPONDENT
Neutral citation: VIP Dry Cleaners & 5 Others vs Minister of Housing and Urban Development [548/19] [2020] SZHC 30 (2nd March, 2020)
Coram: FAKUDZE, J
Heard: 4th December, 2019
Delivered: 2nd March, 2020
Summary: Civil Procedure – Application to declare General Notice No. 49/2012 invalid for want of hearing – Respondents raise defense that there was delay in instituting proceedings by Applicants – no delay in the court’s assessment of evidence – application upheld with costs.
INTRODUCTION
[1] This is an Application to review, correct and set aside the decision of 1st Respondent declaring Malkerns a Town on the basis that he acted unlawfully and ultra vires. He infringed the constitutional rights of the Applicants to be heard before a decision prejudicial to them was taken.
THE PARTIES’ CONTENTION
The Applicant
[2] The Applicants contend that they started receiving rates statements from 2017. Their gripe is that they should not pay rates because all the statutory requirements pertaining to the levying and payment of rates were not followed. The same consideration that was taken into account in deciding case 1366/2016 should be taken into account with respect to the case at hand.
[3] The substance of the Applicants’ case is that General Notice No. 49 of 2012 (which declares Malkerns as an Urban Area) did not define the boundaries of the affected areas, did not invite interested parties, especially the Applicants, to make representations and a Commission of Enquiry was not appointed. Pursuant to the declaration the 3rd Respondent then proceeded to levy rates in terms of the Rating Act, 1995 on the properties of the Applicants.
[4] The Applicants further contend that since 2012 the 3rd Respondent has not been collecting rates but of late it has become active in the collection of same. It is even threatening legal action against non-payment of rates by persons like the Applicants. The Applicants’ case is therefore that the declaration of Malkerns as an urban area is fundamentally flawed as it also includes properties that were not listed in the Legal Notice No. 31 of 1996.
[5] The Applicants argue that in declaring Malkerns as a Municipality, the Minister must comply with Section 4 of the Urban Act 1969 which permits the Minister to declare an area as a municipality, define the boundaries of a municipality, and alter such boundaries. In so doing the Minister must publish the Notice in the Gazette and the newspaper and invite any person to submit representation he may wish to make to the Minister. A commission must also be set up.
[6] With respect to the case at hand, the procedure stipulated in Section 4 of the Urban Government Act, 1969 was not followed. There was also failure to invite Applicants to make representations. This accords with the audi alteram partem rule. The Minister also did not appoint a Commission of Enquiry. The facts of the case at hand are similar to case 1366/2016 where the court decided that the inclusion of the properties belonging to the 60 Applicants into the Malkerns Urban area was unlawful and should be set aside.
[7] The prejudice the Applicants will suffer is that since they were not consulted, their right to administrative justice will be infringed. The court should therefore find in favor of the Applicants.
The Respondents
[8] The Respondents, particularly First Respondent, state that there is no dispute that procedure was not followed following the promulgation of General Notice No. 49 of 2012. It is also true that the right to be heard was not given to the Applicants. So whatever the Applicants say in their Founding and Replying Affidavit is true.
[9] The only basis for the opposition of the Application is the Delay Rule. The issue is that the lawfulness of administrative action must be initiated within a reasonable time after the administrative action complained of was taken. The question of whether an Applicant delayed unreasonably in taking administrative action on judicial review involves two enquiries: was the time it took the applicant to initiate the proceedings unreasonable? If so, should the court in the exercise of its discretion, grant condonation for the unreasonable delay? What constitutes unreasonable delay depends on the facts and circumstances of each case.
[10] The Respondents contend that Malkerns was declared a Town on 10 May, 2012 in terms of General Notice 49 of 2012. There is nowhere in the Founding Affidavit where the deponent avers that he found about the declaration of Malkerns as a Town in 2017. In computing the period of delay, it must start from the date of publication in the Gazette which was 10 May, 2012. The Minister and the citizenry were entitled to take it that the declaration of Malkerns as a Town was valid from 10 May, 2012. The Applicants waited until March, 2019 to seek judicial review of the declaration, a period of 6 years 10 months. In the intervening period, the First Respondent acted on the declaration, by establishing the Town Board, and supporting it financially through subventions. Therefore the delay of 6 years 10 months is grossly unreasonable.
[11] It is the Respondents’ case that the Applicants contend in the Replying Affidavit that the declaration of Malkerns as a Town did not prejudice them but it was the levying of the rates on their properties in March, 2017 which prompted their application. This contention is unsound in the sense that their application is directed at the lawfulness of declaring Malkerns a Town and not the levying of rates on their properties in 2017. There is also evidence as shown in the Replying Affidavit, that in April 2016 already rates were being levied and being paid by the Applicants. The Applicants further state that since 2017, they have been engaging the third Respondent. The nature of the engagement is not stated and the outcome thereof. The third Respondent cannot in law reverse the declaration of an area as a town by the First Respondent.
[12] The Respondents state that it is common cause that in November 2017, there were local government elections in Eswatini including elections for the Malkerns Town Board. Despite these facts, the Applicants did nothing for 1 year 4 months. The Applicants’ delay in constituting the present Application was reasonable.
[13] On the issue of the condonation of the delay, the Respondents state that the Applicants have failed to give countervailing considerations which outweigh the public interest in certainty and finality. The Applicants believe that they are not late. That is why they are not pressing for condonation. There is no basis for the court to condone the Applicants’ delay.
[14] With respect to the Previous Proceedings under case number 1366/2016, the Applicants sought and obtained substantially the same relief as the Applicants in the case at hand. In the previous proceedings the Delay Rule was not invoked by the First Respondent. The judgment in the previous case is not binding in relation to the invocation of the Delay Rule. The Rule entails that in appropriate circumstances a court will decline in the exercise of its discretion to set aside an invalid administrative act. A classic example would be where an aggrieved party fails to institute review proceedings within a reasonable time. The effect is that what would have been a nullity is validated.
[15] The Respondents finally contend that they accept that the declaration of Malkerns as Town by means of General Notice No. 49 of 2012 was invalid. The court should exercise its discretion and decline to set aside General Notice 49/2012 due to the following facts and circumstances:
(a) Malkerns was declared a Town more than 7 years ago. When the Applicants found out about the declaration is irrelevant. General Notice No. 49/2012 existed from 2012;
(b) The First Respondent and the public acted on the declaration by among other things establishing the Town, expending public funds on the Town, and convening local government elections at public expense. The third Respondent has levied, collected and spent rates. An order Setting aside General Notice 49/2012 would be prejudicial to the First and Third Respondents.
(c) The order sought by the Applicants is impractical and it is not pragmatic. They want an order that General Notice 49/2012 should not apply to them. In other words Malkerns is Town but it is not a Town in relation to them even though their immovable properties are within the territorial boundaries of Malkerns. This is impractical.
THE APPLICABLE LAW
[16] The principal rationale for the Delay Rule is to safeguard the person against whom the review is instituted from prejudice stemming from the recognition that undue and unreasonable delay on the part of the aggrieved party may cause prejudice to the other party and it leads to finality of matters.
In Ntame V M.E.C. Social Development 2005 (6) SA 248 @ 257, the purpose of the Delay Rule was explained as follows:
“to bar a party from proceedings who wishes to drag a cow long dead out of a ditch.”
[17] In Keya V Chief of the Defence Force and Others [2013] NASC 2, O’Regan AJA stated the rationale for the Delay Rule in the following terms:
“[22] The reason for requiring applicants not to delay unreasonably in instituting judicial review can be succinctly stated. It is in the public interest that both citizens and government may act on the basis that administrative decisions are lawful and final in effect. It undermines public interest if a litigant is permitted to delay unreasonably in challenging administrative action, the delay will often cause prejudice to the administrative official or agency concerned, and also to other members of the public. But it is not necessary to establish prejudice to find the delay to be unreasonable, although the existence of prejudice will be material if established. There may of course, be circumstances when the public interest in finality and certainty should give weight to other countervailing considerations. That is why once a court has determined that there has been an unreasonable delay, the court will consider whether the public interest in the finality of administrative decisions is outweighed in a particular case by other considerations.”
[18] Cora Hoexter in Administrative Law in South Africa 2007 (Juta) states at page 475 as follows:
“It is well established that an application for review must be brought within a reasonable time. What is reasonable depends on circumstances. Where delay is found to be unreasonable the court may nevertheless decide to condone it if the Applicant can give a satisfactory explanation for it. The court will also take into account other factors especially any prejudice caused to the other party.”
COURT’S ANALYSIS AND CONCLUSION
[19] It is worth noting that the Respondents do not dispute the allegations by the Applicants pertaining to the validity of the General Notice No. 49/2012. The parties are all agreed that the General Notice is invalid because it did not attach the map of the affected areas and that the Applicants were not invited to make submissions regarding the proposed boundaries. The Respondents are saying that notwithstanding the invalidity, it took the Applicants a long time to institute the proceedings to invalidate General Notice No. 49/2012. Infact the Respondents state that it took the Applicants 6 years 10 months to institute these proceedings. The court should therefore validate the actions of the First Respondent.
[20] In its analysis the court is inclined to agree with the Applicants that there is no unreasonable lapse of time in the institution of the proceedings against the Respondents. The Applicants have pointed out in their evidence that they became aware of the declaration of Malkerns as a Town around 2016. This is when the Third Respondent wanted to levy rates against them. The Respondents are countering this argument by saying that the Notice declaring Malkerns as Town came into effect in 2012 and therefore as to when the Applicants found out about the declaration is irrelevant. What the Respondents are saying does not hold water. If the Applicants became aware of the Notice in or around 2016, instituting the proceedings around 2019 is very much reasonable. The due process of the law was not followed in the promulgation of General Notice No. 49/2012. This includes the fact that there was no compliance with Section 4 and Section 111 of the Urban Government Act, 1969. A commission was not set up to allow the Applicants to make their representations.
[21] The other factor that persuades this court to grant the order prayed for by the Applicants is that after the Applicants became aware of the levying of rates of their properties arising from the promulgation of General Notice No. 49 of 2012, they approached the Third Respondent with a view to registering their concerns. The Respondents state that the wrong institution was approached because the 2012 Notice had been issued by the Minister and not the Third Respondent. Much as the Minister issued the Notice, there is no way you can divorce the Third Respondent’s operations from those of the Minister. In terms of the Assignment of Responsibilities to Ministers Legal Notice, Towns and Towns Board are under the Minister for Housing and Urban Development. The Applicants can therefore not be penalised for approaching an agent of the Ministry of Housing.
[22] It is therefore this court’s humble view that the case at hand is not at all materially different from case No. 336/2016 where almost similar facts were considered and the court in that case set aside General Notice No. 49 of 2012. In the circumstances this court grants the Applicants’ Application with costs at any ordinary scale.
_______________
FAKUDZE J.
Applicant: M. Ntshangane
Respondent: M. Vilakati
