State advocate vs Cape Town planning tribunal: a battle for her children’s rights

The fuel station and a primary school

“I have a particularly keen interest in the welfare of children,” said David Daniels. “I’m the chairperson, just as a matter of interest, of Girls and Boys Town South Africa, which deals with children in need, and so I’m familiar with the Children’s Act, and I cannot for the life of me see how an application of this nature will harm children.”

The date was 24 March 2026, and for the last 80 minutes, Daniels had been presiding over an official City of Cape Town hearing into an application to build an Engen service station within throwing distance of a primary school.

Daniels, aside from offering his credentials as an expert on children, was implicitly reminding his audience – comprised of panel members, objectors and municipal employees – that his experience at navigating such cases was second-to-none.

“The school is diagonally opposite, it’s not adjacent to, the filling station,” he went on. “I can’t see how it will have any impact on the school. People do get carried away when they make objections. One of the objectors even said that he suspects collusion between the applicant and the City. I take a dim view of comments like that.”

There was, Daniels insisted, no proof to substantiate the allegation – a position that Daily Maverick would be unable to refute.

Still, as we would report in early June 2026, there was proof that the DA-led City of Cape Town had overrun the municipal planning tribunal (MPT), the supposedly independent organisation over which Daniels presided as chair – and the very same body that, a few minutes after he spoke, would approve the application of Engen Holdings to erect yet another service station in Durbanville, despite a total of 222 objections.

It was for this reason that in mid-June 2026, less than a week after our article appeared, Daily Maverick was approached by Thersia Du Toit-Smit, the primary objector at the MPT hearing of 24 March, and a senior state advocate with the specialised commercial crime unit in the office of the National Prosecuting Authority (NPA) in the Western Cape.

Challenged by a mother

As she informed us, Du Toit-Smit had made the decision to challenge the MPT in her capacity as a mother and affected resident, not in her role as legal counsel for the state. On 21 April, she said, in the same private capacity, she had submitted an application to revoke the MPT’s decision to grant the land-use rights to Engen Holdings. But to us it would soon become clear, irrespective of the hat she was wearing, that her training in jurisprudence and the laws of evidence was well beyond what any tribunal member was equipped to deal with.

“Your article makes an interesting case that all MPT decisions since July last year are null and void,” Du Toit-Smit said to Daily Maverick.

It was a statement that took us by surprise, not because we hadn’t considered the possibility, but because we had not yet committed the scenario to print.

Our report of 7 June 2026, which was published as the opening article in a three-part investigative series on Cape Town’s planning structures, focused strictly on how the municipal council had removed the term limits for MPT members. In direct contravention of national legislation, which had set an unambiguous limit of two five-year terms, we revealed how the council had passed a by-law amendment that allowed its own MPT members to serve for life.

Read more

Members for life — The capture of Cape Town’s planning tribunal

June 7, 2026

The changes had quietly been made, we noted, on 26 June 2025, four days before Daniels was due to hit his ten-year ceiling as chair. What this meant for ordinary Capetonians, we reported, was that the statutory independence of the local tribunal had been compromised.

“As the drafters of the [national] legislation were well aware,” we observed, “given the commercial influence that MPTs can typically wield, such independence is critical to the clean and transparent functioning of local governments. In a booming property market such as Cape Town’s, where the MPT decides on all category 1 land-use applications – rezonings, subdivisions, permanent departures, removal of restrictive title deed conditions – it has the power to more than quadruple a property’s value.”

But Du Toit-Smit, we discovered, was less interested in how an unchecked MPT could unlock value for unscrupulous developers than she was in how Cape Town’s by-laws appeared to take precedence over the Constitution of the Republic of South Africa.

Private home to public square

“Where a decision has the potential to affect children, section 28(2) of the Constitution imposes a clear and binding duty on decision-makers to treat the best interests of the child as a paramount consideration,” Du Toit-Smit noted in paragraph 183 of her revocation application.

“This obligation requires more than a cursory acknowledgment of children’s presence; it demands an active, substantive evaluation of how the proposed development may impact their health, safety and well-being.”

In the case of 45 Falcon Street in Durbanville, the application asserted, neither the planner’s report nor the MPT’s decision had taken into consideration the health risk assessments, child-specific analyses or medical and scientific research that had been submitted by objectors.

The legal core of Du Toit-Smit’s bid to invalidate the decision was therefore in paragraph 185:

“The failure to engage with these material considerations constitutes a breach of the constitutional obligations arising from section 24 and section 28 of the Constitution and renders the decision procedurally and substantively deficient.”

As Daily Maverick would learn, in her reference to section 24, Du Toit-Smit was signalling the environmental breaches in the MPT’s decision, particularly the dismissal of benzene hazards and the proximity to a wetland. But, again, it was in section 28 – which decrees that a child’s best interests are of “paramount importance” in every matter concerning them – that her personal interest lay.

Du Toit-Smit, as she informed us in the initial call, was challenging the MPT in the name of her children, both of whom had been diagnosed with autism spectrum disorder. In fact, in the appeal papers and the revocation application, three “affected parties” had been listed – at the top of each set of documents, Du Toit-Smit was cited in her additional role as “legal guardian and biological mother” to WA Smit and AJ Smit, her minor sons.

What made this story personal, then, was apparent throughout her papers. On page 58 of the revocation application, Du Toit-Smit inserted an image from her upstairs bedroom window, with Erf 15760 – the vacant lot where Engen proposed to sink its tanks – in the centre of the frame. The distance from her home to the site, she noted, was exactly 18.81m.

“When acquiring the property, its location within a low-intensity suburban environment, [the] adjoining wetlands and the nearby agricultural areas [were] a material consideration,” she stated.

“These surroundings provide clear air, reduced noise, and a calm sensory environment, which has been conducive to managing my children’s heightened sensory sensitivities.”

In other words, as a determining factor in her acquisition of the property, Du Toit-Smit had relied on the City of Cape Town’s spatial development framework for the northern planning district, which had explicitly characterised D’Urbanvale in the Durbanville node as a suburb with “larger erven, larger trees and shrubbery” subject to “only incremental densification”.

Mass objections

Just like her neighbours, who had joined her in amassing the grand total of 222 objections – a remarkably high number by any measurement, and by far the most objections to a single development that Daily Maverick had yet encountered – Du Toit-Smit expected the City of Cape Town to fulfil the promise of its own plans.

And yet Cape Town’s municipal council, through the same MPT whose members could now effectively serve for life, seemed intent on moving in the opposite direction.

As Du Toit-Smit had made clear in her original presentation of 24 March – and as she would repeat in the appeal document and revocation application of 21 April – not only was the proposed service station located 50,43m from a primary school, there were already six service stations to choose from within 3km of the site.

Against all of these facts, the case law that Du Toit-Smit cited to support her position was formidable. To quote a small sample, the proximity to Reddam House Preparatory School and her own home had triggered at least three binding precedents: the Constitutional Court case of S v M, where it was held that a child is not simply a circumstance to be weighed in decision-making but an individual whose interests must receive focused and independent attention; the Constitutional Court case of Minister of Welfare and Population Development v Fitzpatrick & Others, where it was held that the Constitution demands a child-centred outcome; and the Supreme Court of Appeal case of the Director of Mineral Development (Gauteng region) & Others v Save the Vaal Environment & Others, where it was held that the law does not demand proof of harm as much as it requires prevention of risk.

The law, however, was only one part of Du Toit-Smit’s argument. As for the risk itself, she cited the World Health Organization and peer-reviewed medical research to demonstrate that fuel stations emit benzene, volatile organic compounds and fine particulates that are linked to asthma exacerbation and respiratory harm in children.

But it was perhaps Du Toit-Smit’s citation of Fuel Retailers Association of Southern Africa v Director-General Environmental Management Mpumalanga & Others that was the kicker. Here, the Constitutional Court found that decision-makers must consider need, desirability and sustainability, with the latter accounting for social, economic and environmental impacts – failure to address these concerns, it was held, could render any decision regarding a fuel station invalid.

By-laws for the win

At around 42 minutes into the hearing of 24 March 2026, after Du Toit-Smit had concluded her oral presentation, Daniels turned to Jaco van der Westhuizen, the City of Cape Town’s technical advisor to the MPT.

“The bulk of the argument laid by the objector is very legal,” said Daniels. “You know, the reference to the Constitution. But there is no acknowledgment of the fact that this tribunal is a creature of statute, [that] there are laws that govern the way in which we operate, what we may or may not decide upon. I think it will be interesting to see your comment on that, whether these various cases that we’ve all read are material or relevant to this particular application.”

Van der Westhuizen did not hesitate.

“I’m not going to wander into the legal aspects of it because I’m not a qualified legal person,” he said, “and this is also not a court of law. You are guided, as I think we have many times advised, by the provisions in terms of the planning law and the relevant considerations that apply to your decision-making.”

To end off, Van der Westhuizen stated that his support was for the applicant, Engen Holdings, which in his opinion had made a submission based on “the facts” as stipulated in section 99 of the applicable planning by-law.

To Daily Maverick, it appeared that Van der Westhuizen, in advising Daniels to set aside Du Toit-Smit’s argument, was by implication giving the go-ahead to the MPT to ignore not only the case law but the precepts of the Constitution itself. Still, in the right-of-reply questions that we put to Van der Westhuizen, we wanted to make doubly sure.

“Do you accept,” we asked, “that Constitutional Court decisions are binding on all organs of state, including administrative tribunals, and that section 39 of the Constitution requires every tribunal or forum to promote the values of the Bill of Rights when interpreting legislation?”

City ‘declined to respond’

On 1 July 2026, on behalf of Van der Westhuizen, a City of Cape Town spokesperson declined the opportunity to respond on the basis that the matter was before the appeal authority. And so, for the second time in less than a month, Van der Westhuizen had sidestepped Daily Maverick’s questions – in Part 2 of our investigative series, as readers may remember, he had remained silent on our finding that the City of Cape Town had never kept employment records of its MPT members, which meant (in our estimation) that there was no reliable method to prove competence or to dismiss conflict-of-interest allegations.

By the same token, and likewise for the second time in less than a month, Daniels was also shielded by the stock response of the Cape Town municipality. As for Engen Holdings, a spokesperson informed us that since the matter was “currently the subject of formal municipal and legal processes, including an appeal,” it would “not be appropriate to comment”.

In other words, among our other concerns, there was no official rebuttal to the fact that neither Du Toit-Smit nor 221 of her neighbours had any need – never mind any want – for yet another service station in their area.

And yet there was, it appeared, a failure to engage that was more technically problematic than all of the above. Also on 1 July 2026, as Du Toit-Smit advised us, the 70-day deadline for a non-negotiable set of deliverables had come and gone. By that date, she said, the City of Cape Town should have (among other things) assembled the administrative record, ensured that the appeal documents were before the correct authority, and communicated with the affected parties.

Instead of fulfilling these obligations, Du Toit-Smit told us, the City of Cape Town had sent her a set of forms to fill out under the Promotion of Access to Information Act.

By our reckoning, as outlined in our three-part series, this confirmed a pattern of riding roughshod over residents’ concerns. And yet Du Toit-Smit, like many of our sources from that series, remained uncowed. If the DA-led municipal council did not intend to respect the dual processes of the appeal and revocation application, she said, she would take the matter on review to the High Court. DM