“One of the requirements for leave to appeal to this court is the reasonable prospect of success on a cognisable constitutional issue. That requirement has not been met,” Judge Johan Froneman said in the ruling. “The scope for an independent constitutional right to require a ‘duty to account’ from the municipality does not exist here.”
Froneman said it would not have been in the interests of justice to grant leave to appeal because there was nothing preventing the applicants from claiming the alleged overpayments from the municipality. “All the information they need is already available to them or can be obtained in normal civil proceedings.”
Property developers Britannia Beach Estate, Britannia Bay Developers, Sandy Point Beach Properties, and West Coast Miracles applied for leave to appeal a Supreme Court of Appeal decision on the tariffs used to determine their capital contributions to six developments, which included the rezoning and subdivision of land.
The municipality approved the developments subject to the payment of capital contributions under the Land Use Planning Ordinance (Lupo) legislation of 1985.
This applies to the Western Cape and includes sections on structure plans, zoning schemes, and the way in which applications may be made for new development rights.
The developers claimed the municipality should have determined the contributions using a tariff approved by the municipality in 1997.
In the Western Cape High Court, they contended the municipality’s decision to levy capital contributions in terms of later changes was invalid and legally defective. They sought to establish a duty on the municipality to furnish an account to them.
The high court found in their favour, holding that a later tariff had been rescinded and that, as a result, it was not in “force”. The court also held that there was a duty on the municipality to account to the applicants.
The SCA set aside the decision, and found the developers had not submitted that the conditions imposed in terms of the Lupo were unlawful. It held that conditions agreed to could not be unilaterally amended by any of the parties, and that they remained binding until set aside in review proceedings.
The SCA found that the procedure described in the Lupo was not followed by the applicants. As a result, the court held it was unnecessary to deal with the duty of the municipality to account to the developers.
In the Constitutional Court, the applicants accepted the SCA’s approach to the unlawfulness of the conditions, but they contended the municipality owed them a constitutional duty to account.