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[2015] ZAWCHC 157
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Levinthal N.O and Others v City of Cape Town Municipality and Another (21199/13) [2015] ZAWCHC 157 (28 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 21199/13
DATE: 28 OCTOBER
2015
In
the matter between:
CRAIG
ALAN LEVINTHAL
N.O
..................................................................................
First
Applicant
JEANNE
TAUBE LEVINTHAL
N.O
.........................................................................
Second
Applicant
BRIAN
NEVILLE GAMSU
N.O
..................................................................................
Third
Applicant
And
THE
CITY OF CAPE TOWN
MUNICIPALITY
......................................................
First
Respondent
CHRISTINE
MATTI
................................................................................................
Second
Respondent
JUDGMENT
DELIVERED
ON 28 OCTOBER 2015
BOQWANA,
J
Introduction
[1]
This is an application in terms of
Rule 41(1)(c) which was brought by the first and second respondents
seeking legal costs against
the first, second and third applicants
(‘the applicants’) in circumstances where the applicants
had withdrawn the review
application, without tendering to pay the
costs incurred by the respondents. The parties are cited as they
appear in the review
application for purposes of convenience.
[2]
On 18 June 2015 the parties appeared
before Judge Fortuin, who gave an order by agreement between the
parties withdrawing the review
application and postponing the issue
of costs to 13 October 2015 and incorporating a timetable regarding
delivery of papers relating
to the application in respect of costs.
[3]
The application with respect to
costs was opposed by the applicants. At the hearing of this matter
the applicants were represented
by the first applicant in person who
confirmed that he was authorised to represent all trustees. A
resolution of the Kerry Trust
(‘the Trust’) passed on 23
June 2015 which recorded such authority was handed up in Court. The
resolution stated that:
‘
1.
The Trustees confirm that Craig Allan Levinthal, a Trustee was and is
authorised to withdraw the High Court application on 18
June 2015,
against The City of Cape Town and Christine Matti, respectively,
launched in the High Court of South Africa, Western
Cape Division,
Cape Town under case number: 21199/13,
and
to attend to all further proceedings as he deems fit relating to said
case including the issue of costs
..;
2.
The Trustees ratify and confirm the past actions of Craig Levinthal
in respect of the aforementioned High Court case in so far
as it may
be necessary.’
(Underlined for
emphasis)
[4]
It appears from the record that the
applicants subsequently delivered a notice of withdrawal of
opposition in respect of the first
respondent’s application
tendering the first respondent’s party and party costs.
[5]
At the hearing of this matter the
applicants and the first respondent submitted a draft order by
agreement recording the applicants’
withdrawal of their
opposition to the first respondent’s application for costs in
terms of Rule 41(1) and their liability
for first respondent’s
party and party costs as taxed or agreed in respect of opposing the
review application and the application
for costs in terms of Rule
41(1). This draft order was made an order of Court by agreement
between the applicants and the first
respondent.
[6]
The hearing of the application in
respect of costs brought by the second respondent continued.
General
principle
[7]
The general principle applicable
when a party withdraws its action or application is that such party
is in the same position as
an unsuccessful litigant, and therefore
the other party is ordinarily entitled to costs. A departure from the
principle that costs
must be awarded to the party which has been put
to the expense of defending withdrawn proceedings is only warranted
in exceptional
circumstances. In this regard, see
ABSA
Bank and others vs Robb
2013 (3) SA 619
(GSJ) at paragraph [8];
Germishuysvs
Douglas Besproeiingsraad
1973 (3) 299
(NKA) and
Waste Products Utilisation
(Pty) Ltdvs Wilkes and Another (Biccari Interested Party)
2003 (2) SA 590
(WLD) at 597 A – B.
[8]
In the matter of
Gamlan
Investments (Pty) Ltd and Another vs Trilion Cape (Pty) Ltd
1996 (3) SA 692
(CPD) at 700G the court referred with approval to the
judgment of
Jenkins vs SA Boiler Makers,
Iron& Steelworkers &Ship Builders Society
1946 WLD 15
where it was held (as paraphrased by the court in Gamlan)
that
‘
where a disputed application is
settled on a basis which disposes of the merits except insofar as the
costs are concerned, the Court
should not have to hear evidence to
decide the disputed facts in order to decide who is liable for costs,
but the Court must, with
the material at its disposal, make a proper
allocation as to costs.’
[9]
The Court expressly associated
itself with the conclusion adopted by Price J in
Jenkins,
and, in particular, its findings (at 17
and 18) that:
‘
It
seems to me to be against all principle for the Court’s time to
be taken up for several days in the hearing of a case in
respect of
which the merits have been disposed of by the acceptance of an offer,
in order to decide questions of costs only.
...
‘
I
cannot imagine a more futile form of procedure than one which would
require Courts of law to sit for hours, days, or perhaps even
for
weeks, trying dead issues to discover who would have won in order to
determine questions of costs, where cases have been settled
by the
main claims being conceded.
[10]
The court in
Gamlan
then went on to draw attention to the finding in the
Jenkins
matter, as the former put it, that
‘
Costs ... must be decided on broad
general lines and not on lines that would necessitate a full hearing
on the merits of a case
that has already been settled. This approach
is certainly to be commended. Costs, more particularly at present,
play a very important
role in litigation and the presiding judicial
officer should, in my view discourage the incurring of unnecessary
costs by making
an appropriate order in this respect.’
[11]
I fully align myself with the
remarks of van Niekerk J in the
Gamlan
Investments
case. This particular
matter was withdrawn by agreement as appears in the order of 18 June
2015. The merits of the review
case have accordingly been ‘settled’
by agreement. That however does not mean that the Court should
totally ignore
the merits as they must be considered to a limited
extent in order for the court to make its findings on costs. Merits
would also
play a role in answering the question of whether any
exceptional circumstances existed to warrant deviation from the
general principle
alluded to above.
Background
[12]
The applicants brought an urgent
application on 27 December 2013 seeking a review of the decision of
the first respondent made on
or about 5 October 2012 approving
certain building plans submitted by or on behalf of the second
respondent in respect of Erf 907,
Tamboerskloof, also known as 12 De
Hoop Avenue, and the proceedings which culminated in the making of
that decision.
[13]
The applicants are all trustees of
the Trust which is a registered owner of the property Erf 908 situate
at Tamboerskloof, which
is adjacent to Erf 907, the second
respondent’s dwelling which was the subject of the review
application.
[14]
The first ground of review relied
upon by the applicants was that the first respondent approved plans
for a building which was to
be used as a guest house and as a
residential building, in conflict with the use of rights attaching to
the property in terms of
the zoning scheme, ‘which was limited
to a dwelling house’. The applicants contended that the first
respondent’s
decision was in contravention of section 7 (1) (a)
of the National Building Regulations and Building Standards Act 103
of 1977
(‘the NBR Act’), which required that building
plans comply with the ‘applicable law’, which includes
the
zoning scheme.
[15]
The second ground for review was
that first respondent could not have satisfied itself that the
building plans do not trigger the
disqualifying factors listed in
section 7 (1) (b) of the NBR Act, and consequently ought to
have refused the application.
The review application was opposed by
both the first and second respondents.
No condonation
application
[16]
The basis for the opposition was
firstly that the review proceedings were instituted contrary to the
requirements of section 7(1)
of the Promotion of Administrative
Justice Act, 3 of 2000 (‘PAJA’) outside the 180 day
period following on from the
date on which the applicants became
aware of the administrative action or might reasonably have been
expected to have become aware
of such action.
[17]
The review application was launched
on 12 December 2013 which was 11 months after the building plans were
approved, that is on 01
February 2013. According to the
respondents, the first applicant stated that he was aware of the
approval of the building
plans since construction commenced in April
2013 which is some 8 months prior to the institution of the
proceedings. The
first applicant had engaged with the first
respondent since April 2013 in respect of the building plans and did
not take any steps
to review and set aside the plans, until the
building was completed. Furthermore, there is no application
for condonation
nor is there any reasonable explanation given for the
delay.
[18]
The applicants in their own version
acknowledged that more than 180 days had elapsed since the first
applicant became aware of the
‘probable’ approval of the
building plans in respect of Erf 907 by the first respondent. They
acknowledged that the
period of 180 days is as contemplated by
section 7 (1) of PAJA. The applicants further indicated in
their founding papers
in the review application that the first
applicant would request that the period be extended by agreement with
the first respondent
in terms of section 9(1) of PAJA and that if the
first respondent did not agree he would apply to Court in terms of
the same section
to grant the necessary extension permitting the
review application to proceed on the basis that the interest of
justice required
such contemplated extension be granted.
[19]
There is no agreement between the
parties for the extension of the time period. The applicants did not
bring any application to
this Court to extend the period for the
launching of the application as required in section 9 (1) of PAJA.
[20]
It was submitted by Ms Van Zyl on
behalf of the second respondent that the review application would not
have been entertained by
the review Court. She referred to the recent
decision of
Opposition to Urban Tolling
Alliances vs South African National Roads Agency Limited
(2013) 4 All SA 639
(SCA) (‘
OUTA
’)
at para 26 where Brand JA stated the following:
‘
[26]
At common law, application of the undue delay rule required a
two-stage enquiry. First, whether there was an unreasonable
delay and, second, if so, whether the delay should in all the
circumstances be condoned (see e.g.
Associated
Institutions Pension Fund and others v Van Zyl and others
2005 (2) SA 302
(SCA) at paragraph 47 [also reported at
[2004] 4 All
SA 133
(SCA) – ed]). Up to a point, I think, section 7(1)
of PAJA requires the same two-stage approach. The difference
lies, as I see it, in the Legislature’s determination of a
delay exceeding 180 days as per
se
unreasonable. Before the effluxion of 180 days, the first
enquiry in applying section 7(1) is still whether the delay (if
any)
was unreasonable. But after the 180-day period the issue of
unreasonableness is pre-determined by the Legislature; it is
unreasonable per
se.
It
follows that the court is only empowered to entertain the review
application if the interest of justice dictates an extension
in terms
of section 9. Absent such extension the court has no authority
to entertain the review application at all.
Whether or not the
decision was unlawful no longer matters. The decision has been
“validated” by the delay
(see eg
Associated Institutions Pension
Fund
(supra) at paragraph 46). That of
course does not mean that, after the 180-day period, an enquiry into
the reasonableness of the
applicant’s conduct becomes entirely
irrelevant. Whether or not the delay was unreasonable and, if
so, the extent of
that unreasonableness is still a factor to be taken
into account in determining whether an extension should be granted or
not (see
e.g.
Camps Bay Ratepayers’
and Residents’ Association v Harrison
[2010] 2 All SA 519
(SCA) at paragraph 54).’ (Underlined for
emphasis)
[21]
Brand JA went on to state at
paragraph 43 that:
‘
[43]
Hence, I believe that despite the appellants’ various arguments
to the contrary, we are not authorised to enter into
the merits of
the review application. Contrary to this approach, the court
a
quo
first dealt with the review
application and dismissed it on its merits. In consequence, the
court found it unnecessary to
consider the effect of the delay rule.
Although, for the reasons I have given, I do not agree with this
approach, the conclusion
I arrived at on the outcome of the review
application happens to be the same, namely that it could not succeed.
This means that
in substance the appeal must fail.’
[22]
In the present instance, the fact
that there is no condonation application would have presented the
applicants with difficulty.
The court would not have been able to
even get to the question of whether the interests of justice dictated
that an extension be
granted (because no application to extend the
period to launch the review was brought).
[23]
Furthermore, it cannot be said that
paragraphs 67 to 70 of the founding affidavit in respect of the
review application amounted
to an attempt to explain the delay. In
these paragraphs the applicants simply listed dates when the first
applicant communicated
his concerns with the first respondent. The
applicants also allege that they voiced an objection to the second
respondent as to
her conduct and requested information from her to
assess the unlawfulness of her conduct through their attorney in June
2013. Firstly,
this is not stated as a reason for the delay;
secondly, it is not stated how that information would have assisted
in the review
of the first respondent’s decision; and, thirdly,
it does not appear that the applicants did anything beyond June 2013
to
press for such information.
[24]
It seems to me the review
application would have been dismissed on that basis alone.
Merits of the
review
[25]
If one has regard to the merits of
the review, the second respondent made common cause with the first
respondent on why the grounds
for review should fail. The first
applicant alleged in the review application that the building plans
which were presented to and
considered by the first respondent
pertained to the alterations of a ‘dwelling house’,
whereas it was manifest from
the outset that the second respondent
proposed to conduct the business as a guest house and thus intended
to alter the original
house for that purpose and that the first
respondent must have known this.
[26]
According to the respondents, the
property is zoned as general residential, which permits a ‘dwelling
house’ as a primary
use right and the building approved and
erected on the property complies with a zoning requirement for a
dwelling house which applied
at the time of the approval of the
building plans. The property is being utilised as a bed &
breakfast, which is a permissible
additional use right in terms of
the zoning scheme currently in force.
[27]
The first respondent contended in
its review papers that it considered the building plans that served
before it objectively in order
to assess whether they complied with
the zoning scheme, the NBR Act and building regulations. It
found that the building
plans were compliant with the zoning scheme.
According to the first respondent, the subjective intention of the
second respondent
in submitting the plans was irrelevant. The first
respondent alleged that it inspected the property on three occasions
to establish
the actual land use and whether it was in terms of the
additional use rights as a bed & breakfast. It found no illegal
activities.
It maintained that until a departure from the zoning
scheme is granted the property remains zoned as a dwelling.
[28]
It was submitted by Ms Van Zyl that
the subjective intention of the second respondent is irrelevant.
She referred to an unreported
judgment of this division,
Kenneth
Bruce Sinclair
–
Smith
and Another vs The Trustees for the Time Being of the Saphrey Trust
and the City of Cape Town
, case number:
9987/2009, where the Court held as follows at paragraphs 8.1.3 to
8.2:
‘
...[8.1.3]
Mr Rosenberg argued that the application to have the plans approved,
was not
bona fide,
in that the First Respondent has a disguised intention which was not
disclosed when the application was made. The disguised agenda,
so it
was argued, should have been disclosed to the municipality so as to
enable it to consider the application in the light of
the purpose for
which the building was to be used. The fact that the building
qualified as a single residence according to the
zoning thereof and
the applicable building regulations, did not render the decision by
the Municipality a lawful one.
[8.1.4]
It was argued that even if the official who considered the plans was
probably not aware of the First Respondent’s
concealed agenda,
the decision was nevertheless invalid because of the First
Respondent’s failure to disclose its true motive.
[8.2]
I cannot agree with this contentions advanced by Mr Rosenberg,
I am of the view that it is incumbent on the Municipality
to consider
whether the plans objectively comply with the zoning and building
regulations and that the subjective intention on
the part of the
person who submits the plans is irrelevant. I according
conclude that the Applicants have not established
a prima facie case
that they likely to succeed on this ground.’
[29]
Firstly, I agree with Ms van Zyl
that the second respondent’s intention was irrelevant. She was
entitled to operate a bed
& breakfast establishment and this is
not contested by the applicants. Furthermore, to the extent
that the applicants
were unhappy with her conduct that she was not
adhering to the parameters set by the zoning scheme for such
establishments, the
appropriate course of action was to complain to
the first respondent, as they apparently did, who would have taken
steps to prevent
any unlawful land use by the second respondent. The
first respondent explained in its papers that it in fact did conduct
an investigation,
inspected the property on three occasions and
discovered that there was no land use contravention as the property
was being used
as a bed & breakfast within the parameters of the
additional use rights in the new City of Cape Town Zoning Scheme
(‘the
CCTZS’). The first respondent alleged further that
the plans and documentation submitted by the second respondent were
evaluated
and the second respondent’s application was found to
be compliant with the Scheme Regulations, the National Building
Regulations
and other applicable law.
[30]
It is common cause between the
parties that in order for the property to be utilised as a guest
house, the second respondent would
have been required to obtain a
further permission, namely, a departure from the city zoning scheme.
It is contended by the
second respondent that the applicants’
attempt to rely on a subsequent departure application is misplaced as
the review application
was about the building plan approval and not
the departure application and the applicants’ attempt to
introduce a new ground
of complaint in the cost application
concerning the departure application is not permissible. I agree with
this contention.
[31]
It appears from the first
respondent’s answering affidavit to the review application that
an application [for departure] was
submitted by Tim Spencer Town
Planning CC on behalf of the second respondent in respect of the
property in question on 29 August
2008. That application was
not processed further by the first respondent upon the failure of the
second respondent to provide
the first respondent with outstanding
information and necessary documentation. That application was
superseded by a further application
by Tim Spencer Town Planning CC
on 18 December 2013 for a departure to permit the use of a new
dwelling erected on the property
for a guest house, which was revised
again on 09 May 2014 and had not yet been determined. As has
been stated the departure
application was not the subject of the
review application.
[32]
The
applicants did not file any replying affidavit to the review
applications. The version of the respondents should be accepted
if
one has regard to the
Plascon-Evans
rule
[1]
.
[33]
The applicants referred to a
recently reported decision of
Aboobaker
NO vs Serengeti Rise Body Corporate and Another
2015
(6) SA 200
(KZD) and submitted that that decision was on all fours
with their case. The
Aboobaker
case dealt with a situation where a property was rezoned in the
absence of proper notice being given to the affected parties. The
applicants’ contention in the present matter is that they were
similarly not given proper notice. The court in Aboobaker
found that
the portion of the building constructed based on the deviation plan
was illegally constructed and ordered its demolition.
[34]
I am not convinced that the
Aboobaker
case
is similar to this one on the facts. This case deals with the
approval of the building plans and not the departure application.
Furthermore, as stated above, the applicants cannot raise a new
ground for review in the affidavit opposing costs.
Are
there exceptional circumstances?
[35]
The applicants could not on
plausible grounds, point to the existence of any exceptional
circumstance in respect of their case against
the second respondent.
As such, I could not find any reason why they would tender payment of
the first respondent’s costs
and persist with their opposition
to the application in respect of the second respondent. The first
applicant submitted that they
brought the review because of the
second respondent’s unlawful conduct. He contends that had it
not been for her the first
respondent would not have approved the
building plans and no review application would have been brought.
[36]
It must be remembered that the
decision challenged on review was that of the first respondent. None
of the relief sought was against
the second respondent. She was cited
by the applicant as a party to the review simply because she had an
interest in the outcome
of the review as the owner of the property in
question. She was justified in opposing the matter. It seems unjust
in my view that
she should be expected to pay her own costs, having
been forced to incur them; moreso, in a case where she enjoyed good
prospects
of success on review if the matter were to be decided.
Apart from that, the applicants’ opposing affidavit largely
deals
with the interaction that the first applicant had with the
first respondent’s officials and very little with why the
second
respondent should not be awarded costs in her favour.
Costs of 18 June
2015
[37]
As regards costs for the hearing of
18 June 2015 which stood over for later determination, the applicants
submit that they were
only notified about the set down of the matter
five days before the hearing. At that stage they were not prepared to
argue the
matter. It would appear from the opposing affidavit that
the applicants instructed one Jean-Claude Barrish (‘Barrish’)
to act as their legal representative in their negotiations with the
first respondent about a possible withdrawal of the matter.
The
applicants’ attorneys of record, Lamprecht Attorneys, withdrew
as attorneys of record in February 2014. The notice of
set down was
apparently sent by the registrar to such attorney (Lamprecht).
[38]
He forwarded the notice of set down
via
email
to Barrish on 13 May 2015, Lamprecht alleges that he had no reason to
believe that Barrish had not received his email. Lamprecht’s
notice of withdrawal as attorneys of record clearly stated the
applicants’ last known address. The error appears to have
occurred on the side of the registrar’s office. The first
applicant alleges that the notice was served at his house on 10
June
2015 but he received it on 12 June 2015. He claims that Barrish only
advised him that he received the notice on 16 June 2015.
[39]
Whilst it may be argued that the
applicants would possibly not have been able to proceed on 18 June
2015 as they did not have enough
time to prepare, they did not attend
the hearing on that day with the view to postponing the matter in
order to prepare. They attended
with the purpose of withdrawing the
matter. They were not forced to do so. They also gave no indication
to the second respondent
of their intention to withdraw the matter on
18 June 2015. The second respondent was represented by counsel who
was prepared to
argue the matter on that day. It is worth noting from
the applicants’ affidavit that Barrish continued to communicate
on
behalf of the applicants with the first respondents on 15 June
2015. It does not seem just in my view to exclude the costs incurred
by the second respondent in respect of 18 June 2015.
Expert costs
[40]
The second respondent alleges that
she employed the services of Tim Spencer of Tim Spencer Town Planning
CC, a qualified town planner,
in preparation for her answering
affidavit in the review application. Her affidavit was delivered
after the first respondent’s,
which essentially adopted the
same approach as hers. It therefore became unnecessary to refer to
Spencer’s expert advice
and opinion in her answering
affidavit. According to her Spencer spent 10 hours in
consultation and advice in respect of
the review application at the
tariff of R1542.00 per hour, as recommended by the South African
Council for Planners. Ms Van Zyl
referred to the decision of
Transnet
Ltd t/a Metrorail and Another v Witter
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA) where it was held at para 15 that an expert
witness’s preparation fees will only be allowed on taxation if
authorised
by the court or with the consent of all interested
parties. Item 5 of part D under Uniform Rule 70 makes this clear as
it provides
that:
‘
Provided
that the preparation fees of a witness shall not be allowed without
an order of the court or the consent of all interested
parties.’
[41]
Based on the technical nature of the
application, I am satisfied that the use of an expert was reasonable
and justified. It follows
therefore that such costs should be borne
by the applicants.
Appropriate
cost scale
[42]
The second respondent sought costs
on an attorney and client scale on the basis that the applicants
failed to advance a case on
review but instead made unfounded
allegations against her, painting her as being dishonest in her
dealings with the first respondent,
without any evidence to support
such allegations.
[43]
Such allegations are indeed rather
unfortunate and unsubstantiated. I am however not persuaded
that a punitive cost order
is justified. It seems to me, whilst those
were unacceptable, they were based on emotion and raised by a
neighbour who was motivated
by anger. I take into account that the
first applicant is a lay person who was affected by the decision of
the first respondent.
This is not to condone such frivolous
averments. I am mindful of the fact that the court, when appropriate,
ought to show its displeasure
with a litigant’s conduct by
awarding costs on an appropriate scale. I however find that, in spite
of these allegations,
the lack of prospects of success in the review
would not have warranted a special cost order. I am disinclined to
impose it under
these circumstances.
Conclusion
[44]
For the reasons set out above, the
second respondent’s application should succeed. No exceptional
circumstances have been
shown warranting deviation from the general
principle that a party that withdraws a matter must be liable to pay
the costs.
[45]
I therefore make an order in the
following terms:
1.
The applicants shall pay the second
respondent’s costs incurred in her opposition to the
application for judicial review instituted
by the applicants under
case number 21199/2013.
2.
The cost order referred to in paragraph 1
above shall include the preparation costs of the second respondent’s
expert witness,
Mr Tim Spencer of Tim Spencer Planning CC, which
costs shall be allowed on taxation.
3.
The applicants shall pay the costs of the
application in terms of Rule 41(1) (c).
N
P BOQWANA
Judge
of the High Court
APPEARANCES
FOR
THE FIRST, SECOND & THIRD APPLICANTS: Mr C Levinthal in person
FOR
THE FIRST RESPONDENT: Adv M O’Sullivan
INSTRUCTED
BY: Hayes Incorporated, Cape Town
FOR
THE SECOND RESPONDENT: Adv S van Zyl
INSTRUCTED
BY: C & A Friedlander, Cape Town
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H – 635C