The Gauteng High Court is hearing a legal challenge over the approval of a mosque development in Sunninghill, Johannesburg, as the Sunninghill Islamic Jamaat Trust (SIJT) seeks to defend a rezoning decision that it says was lawfully granted by the City of Johannesburg.
Friends of Sunninghill, a residents’ association, has asked the court to review and set aside the City’s September 2022 decision approving the rezoning of Erf 160 to permit a place of public worship, a place of instruction and a dwelling unit.
The association argues that the approval process was procedurally flawed and failed to comply with the Promotion of Administrative Justice Act (PAJA).
The matter, being heard in the Gauteng Division of the High Court on Monday, pits the residents’ association against the Member of the Mayoral Committee (MMC) for Development Planning, the City of Johannesburg Metropolitan Municipality and the trustees of the Sunninghill Islamic Jamaat Trust.
The trustees are Rashid Ahmed Minty, Salman Ilyas, Muhammad Riaz Osman, Muhammad Taahis Osman, Ismail Ganchi, Junaid Elias and Ashraf Bayat.
According to the Trust’s constitution, one of its principal objectives is: “To promote religious, social, cultural, spiritual and educational advancement of the relevant Muslim Community.”
It further states that the Trust exists: “To uphold and propagate Islam,” and seeks: “To establish and operate Mosques, Musallaas (Muslim places of worship), cemeteries and educational institutions for the benefit of the relevant Muslim Community.”
Rezoning applications initially rejected
The dispute stems from two rezoning applications submitted by the Trust in 2018.
The Trust applied to rezone Erf 160 from Residential 1 to Educational to permit a mosque, a place of instruction, or madressa, and a dwelling unit.
A second application sought to rezone neighbouring Erf 162 to permit a private parking area and dwelling unit.
Both applications were initially refused by the City of Johannesburg Municipal Planning Tribunal in September 2021.
The Trust appealed the decision, and in September 2022 the MMC partially upheld the appeal by approving the rezoning of Erf 160 while refusing the application relating to Erf 162.
In opposing the review application, SIJT argues that the City’s decision was lawful and that Friends of Sunninghill’s case should be dismissed.
According to the Trust’s court papers, the review application was launched outside the statutory period prescribed under PAJA.
The Trust argues that the case was instituted six days late without an accompanying application for condonation. It also challenges the residents’ association’s legal standing and disputes whether the person who submitted its founding affidavit was authorised to institute the proceedings.
In its heads of argument, the Trust further submits that the case is “an appeal impermissibly disguised as a review”, maintaining that the grounds advanced by the association are without merit.
Residents allege procedural unfairness
Friends of Sunninghill, however, contends that the City’s approval process was procedurally unfair.
According to its founding affidavit, residents who objected to the development were not informed of the outcome of the Trust’s appeal and only became aware that the rezoning had been approved in October 2024 after noticing increased activity on the property.
The association alleges that the City failed to provide adequate reasons for its decision despite being asked to do so.
It further claims that the City did not produce a complete record of the appeal proceedings, including the objectors’ submissions, minutes of the hearing and the Appeal Committee’s recommendation to the MMC.
Friends of Sunninghill argues that these omissions prevented residents from understanding how the decision was reached and form part of its grounds for review under PAJA.
The association is asking the court to review and set aside the 2022 rezoning approval and remit the matter to the MMC for reconsideration.
It is also seeking an order directing that any structures erected on Erf 160 for religious or instructional purposes be demolished should the court ultimately set aside the rezoning approval.
The High Court is expected to determine whether the City’s decision-making process complied with PAJA and whether approval for the mosque development should remain in force or be reviewed and set aside.