THE
HIGH COURT OF SWAZILAND
Civil
Application No.1293/03
In
the matter between:
CITY
COUNCIL OF MANZINI Applicant
And
CAMBRIDGE
HIGH SCHOOL (PTY) LTD 1st Respondent
J.
KWARTENG 2nd Respondent
THE
LUTHERAN CHURCH 3rd Respondent
CORAM
: MASUKUJ.
For
the Applicant : Mr B. Magagula (Robinson & Bertram)
For
the Respondent : Mr E. M. Simelane
RULING
ON POINTS IN LIMINE 7th April 2004
In
the year 2003, the Applicant, a local municipality, duly established
in terms of the provisions of the Urban Government Act 8/1969 set out
on a crusade to stop the seeming mushrooming of schools in its
jurisdictional area, which in its view were operating illegally and
in contravention of its development Code.
As
a result of this crusade, the Applicant moved a number of
applications before this Court interdicting the use of the various
properties other than for residential purposes. The 1st Respondent is
one of such schools.
The
legal question for determination in this matter, and the Ruling of
which it was agreed would equally apply to the related matters, being
CIVIL CASE NO.S 1290/2003 and
2
1292/2003,
is the legality or otherwise of the Manzini Development Code of 1991.
The question, raised in limine by the Respondents is couched in the
following language: -
"I
submit that the Applicant wrongly instituted the application on an
illegal statutory enactment, alternatively on an ultra vires
enactment The Town Planning Act of 1961 does not refer to any
Development Code or provide for the establishment of such, but
instead refers to the Establishment of Schemes in the course of
preparation and operation of approved schemes."
During
the argument, Mr Simelane for the Respondent, raised a further point
in his quest to have the Code declared invalid. He urged the Court to
find that the Code was not
promulgated
by publication in the Gazette;
approved
by the Minister responsible, and
reviewed
periodically as peremptorily required by the Town Planning Act, 1961
and further that the Minister responsible did not grant an extension
for the operation of the Code, Relevant Legislative Enactments.
It
is in my view clear that a just decision in this case requires a
close examination and interpretation of the relevant provisions. The
most relevant piece of legislation in this regard is the Town
Planning Act, 1961, (hereinafter referred to as "the Act").
Section
8 of the Act provides the following:-
(1)
Every town planning scheme shall have for its general purpose a
co-ordinated and harmonious development of the urban area or other
area to which it relates, including where necessary the
reconstruction and redevelopment of any part which has already been
sub-divided, whether there are or are not buildings thereon, in such
a way as will most effectively tend to promote health, safety, order,
amenity, convenience and general welfare, as well as efficiency and
economy in the process of development and improvement of
communications.
(2)
A town planning scheme shall contain such provisions as may be deemed
necessary
3
or
expedient for regulating, restricting or prohibiting the development
of the are to which the scheme applies and generally for carrying out
any of the objects for which the scheme is made, and in particular,
for dealing with any matters mentioned in the Second Schedule to this
Act."
The
matters listed in the Second Schedule include but are not limited to
inter alia:-
The
preparation of a contour or topographical map of the area;
Streets
regarding grades, widths, intersections, volume and character of
traffic, measures to ensure safety of travelling public, closing,
deviations, cultivation of trees, provision of ornamental works to
improve appearance of streets;
Extinction
or variation of private rights of way and servitudes generally
The
prohibition, regulation or control of advertisements in public
places
Lighting
and water supply
Sewerage,
drainage and sewerage disposal
The
demarcation or zoning of areas to be used exclusively or mainly for
residential, commercial, industrial or other special purposes,
Power
of the responsible authority to remove, alter, demolish any
obstructive work.
In
relation to the Sections quoted above, the Respondents argue that the
"Code" is unlawful because it is not envisaged by the Act.
This stems from the use of the word "town planning scheme"
in both sub-sections of Section 8. In the Respondent's view, the
document must be called a "scheme" and nothing else.
Calling it another name, in their submission, attracts invalidity.
Chapter
1 of the Code, entitled "General Provisions" provides as
follows:-1.1 Enactment and Title
The
regulations set forth herein shall be cited as the Manzini
Development Code, 1991.
4
The
scheme shall have effect as a "scheme in the course of
preparation" as of 23rd
January,
1988. '
The
scheme shall come into effect as an approved scheme upon
promulgation of a
Notice
of approval in the Gazette.
This
Code shall apply to the Manzini Urban Area as from time to time
declared under the Urban Government Act No.8 of 1969.
The
Town Council of Manzini shall be the local and responsible authority
for enforcing and carrying into effect the provisions of this code."
In
the Table of Contents, the document is described as follows:-
"MANZINI
TOWN PLANNING SCHEME DEVELOPMENT CODE 1991"
The
then Minister for Housing and Urban Development, The Hon. J.P.
Carmichael, in giving his certificate of consent, as required by
Section 15 of the Act, on the 12th September, 1996, referred to the
Code as the "Manzini Town Planning Scheme", consented to in
terms of the Town Planning Act, of 1961.
I
have gone to the above lengths to show that wittingly or unwittingly,
the drafters of the document used the words "scheme" and
"code" interchangeably. In particular, a cursory look at
1.1 (a) to (e) quoted above, bear my conclusion in this regard out.
In
my view, the question to be answered is not whether the word used to
call the document is "scheme", as used in the Act or "code"
used interchangeably with "scheme" in the document. The
question rather is whether the document, whether one calls it a
"scheme" or "code" meets the requirements
carefully set out in Section 8(1) and (2) of the Act, regarding the
purpose of the document and the matters it provides for.
It
is abundantly clear that the "scheme" or "code"
of Manzini was designed to meet the purposes set out in Section 8 (1)
of the Act. Furthermore, in its text, it makes provision for the
matters set out in Section 8 (2). It is furthermore undeniable that
it also makes provision
5
for
the particular matters set out in the Second Schedule to the Act and
referred to in Section 8(2).
In
view of the foregoing, the indubitable conclusion is that the "code"
or "scheme" is the document specifically provided for in
the Act, regardless of the name by which it is called. The position
adopted by the Respondents in this regard, is in my view highly
fastidious and is unduly technical. What we must focus on is the
content of the document rather than the label.
I
therefor find that nothing turns on the use of the word "code"
as opposed to "scheme" and in any event that the use of the
word "code" in the document does not serve to invalidate
the document. This point must be dismissed, as I hereby do.
The
next argument to consider relates to the promulgation of the scheme.
Mr Simelane, argued that the scheme was not promulgated in the
Government Gazette, notwithstanding the express provisions of Section
20 (2) of the act and Article 1.1 (c) above. Mr Magagula, for the
Applicant provided the Court with a copy of a Government Gazette.
Legal Notice 156 of 1996 reads as follows:-
"THE
TOWN PLANNING ACT, 1961 (Act No.45 of 1961)
APPROVAL
AND COMING INTO FORCE OF SCHEMES
(Under
Section 20)
In
exercise of the powers conferred by Section 20 of the Town Planning
Act, 1961, the Minister of Housing & Urban Development, notifies
the general public that the Manzini Town Planning Scheme (1992-2011)
has been approved.
Signed
M.C.
DLAMINI Principal Secretary"
This
Legal Notice renders the Respondent's argument caedit quaestio, as it
is clear that the
6
scheme
was promulgated accordingly. This Notice fully disposes of the
Respondent's argument which must, in my view, fail
The
Respondents, not to be out done in their quest to have the Code
declared invalid, had another string up their bow. They argued that
contrary to the provisions of Section 21 (4), the scheme has not been
reviewed and it is therefor no longer valid and is not of no force or
effect.
Section
21 (4), upon which reliance is placed reads as follows:-
"Every
approved scheme shall be reviewed periodically at intervals of not
more that five years.
Provided
that the Minister may on application extend the interval in any case
upon such conditions as he may deem proper. " (Emphasis my own)
The
question to be determined in this case is whether the underlined word
"shall", occurring above is peremptory or merely directive.
Mr Simelane argued that it is peremptory. In order to decide on the
effect of the nomenclature employed, Maxwell on Interpretation of
Statutes, 12th Edition, Sweet and Maxwell, 1969, states the following
at page 314: -
"It
is the duty of Courts of Justice to try to get at the real intention
of the Legislation before carefully attending to the whole scope of
the statute to be examined."
The
whole scope of the Act appears as the following:-
"An
Act to make provision for the preparation and carrying out of town
planning."
It
would therefor appear in my view that the interpretation contended
for by Mr Simelane would collide head on with the Legislative
intention expressed above. Chris Botha, in his work entitled
"Statutory Interpretation" 3rd Edition, Juta & Co, 1998
says the following at page 138:
7
"If
the wording of the provision is in positive terms, and no penal
sanction has been included for non-compliance of the requirements, it
is an indication that the provision in question should be regarded as
being merely directory...Failure to comply with a peremptory
provision would leave ensuing act null and void, while the
non-compliance with a directory provision will not result in
nullity."
It
is clear from the foregoing that the provision in question, although
the word "shall" is used, does not include a penalty for
non-compliance. All the indications therefor are that it is a
directory provision and the failure to comply therewith does not
result in the nullification of the scheme. See also NKISIMANE AND
OTHERS VS SANTAM INSURANCE CO. LTD 1978 (2) 430 at 435.
It
is, in my view, significant that the reviewing of the schemes
periodically does not always mean that the scheme must be changed.
All that depends on the continued suitability of the schemes in
question. To then hold that because there is no review, the scheme is
null and void, seems to take the matters beyond the Legislative
intention expressed. I interpolate to mention as well that this point
was not raised in the papers and in which case, the Applicant, would
have responded to it. It was only raised in argument in Court and no
evidence was in any event adduced to show that the scheme was or has
never been reviewed as alleged. All that I say above is therefore
subject to this overriding consideration.
In
dealing with the peremptoriness or otherwise of the language used in
an enactment, it is imperative to take heed to the wise injunctions
of Trollip J.A. in NKISIMANE VS SANTANA INSURANCE CO. LTD 1978 (2)
430 (AD) at 433 H - 434 A, where the following is recorded: -
"Care
must therefore be exercised not to infer merely from the use of such
labels what degree of compliance is necessary and what the
consequences are of non-or defective compliance. These must
ultimately depend upon the proper construction of the statutory
provision in question or, in other words, upon the intention of the
lawgiver as ascertained from the language, scope, and purpose of the
enactment as a whole and the statutory requirement in particular."
At
page 434 B, Trollip J.A. continued and said: -
8
"On
the other hand, compliance with a directory statutory requirement,
although desirable, may sometimes not be necessary at all, and non or
defective compliance therewith may not have any legal consequences. "
This
appears to be the case in this matter in my respectful view.
What
the Respondent advocates for in casu, is what Lord Denning warned
against in the following language in SCARFORD COURT ESTATE LTD VS
ASHER (1949) 2 KB 481 at 499, where the following recorded:-
"We
do not sit here to pull the language of Parliament to pieces and make
nonsense of it. That is an easy thing to do and it is a thing to
which lawyers are too often prone. We sit here to find out the
intention of Parliament and of ministers and carry it out, and we do
this better by filling in the gaps and making sense of the enactment
than by opening it up, to destructive analysis."
Another
issue, that in my view militates against the Respondent's argument,
even if it can be held that the scheme becomes null and void, if not
reviewed, and no sanction is sought, is the fact that the Minister,
in the Gazette referred to above, approved the operation of the
scheme From 1992 to 2011. This would appear to be the duration of the
schemes as approved.
I
am of the view that these points of law must therefor be dismissed. I
form the view that these points in limine were not raised with any
degree of bona fides and amounted to a waste of the Courts time. I
therefor make an adverse order for costs on the ordinary scale, to
follow the dismissal.
T.S.
MASUKU
JUDGE
