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[2010] ZAGPJHC 113
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Du Raan v Stuart and Another (09/49826) [2010] ZAGPJHC 113 (11 November 2010)
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SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 09/49826
DATE: 11/11/2010
REPORTABLE
In the matter between:
DU
RAAN, SHARON MARGARET
.
Applicant
and
STUART,
ARNOLD ROLAND
First Respondent
STUART,
DENISE CHARMAINE
.
Second
Respondent
J U D G M E N T
KATHREE-SETILOANE, AJ:
[1] The applicant and the respondent
own adjoining erven in Malvern Township, Johannesburg. The
applicant is the owner of
Erf 1778, Malvern Township, Johannesburg,
and the respondents are the owners of Erf 1777, Malvern Township,
Johannesburg.
The two properties share a boundary at the back,
but face separate streets. The applicant’s property is the
higher lying
erf while the respondents’ property is the lower
lying erf.
[2] The applicant seeks a declaratory
order that the respondents’ property must receive storm water
flowing from her property
(Erf 1778, Malvern Township), and that she
be authorised to insert two weeping holes in the boundary wall
between the two properties
to allow water to flow from her property
to the respondents’ property.
[3] It is the applicant’s
version that after she took occupation of the property, in September
2006, it soon became apparent
that storm water accumulated against
the back wall of her property and formed a dam, which from time to
time pushed up to the buildings
and flowed into the cottage in her
backyard. The damming of the water occurred as a result of the
absence of weeping holes
in the wall between the applicant’s
property and that of the respondents. Despite numerous oral
requests by the applicant
to the respondents to allow her to insert
weeping holes in the boundary wall between the two properties, such
permission has been
refused.
[4] Approximately 18 months after the
applicant took occupation of the property she applied to change the
restrictions on her property
in order to conduct a reflexology clinic
from her home. The application has to date not been approved,
and she is awaiting
a date for the hearing of the application.
The City of Johannesburg’s Environmental Management Department
supports
her application, and so too does its Development, Planning
and Control Department. It has, however, imposed the following
conditions,
namely that provision be made, for the routing of
overland flow of storm water in the event of a major storm and, for
the
disposal and acceptance of stormwater onto the lower lying
properties. The applicant’s attorneys of record
consequently
sent a letter to the respondents explaining the problem,
and informing them that, in the absence of their corporation, the
applicant
will proceed to insert drainage pipes in the boundary wall
to allow for the overflow of the stormwater onto their property.
[5] The
letter also brought to the respondents’ attention clause 15(2)
of the Johannesburg Town Planning Scheme of 1979 (“
the
Town Planning Scheme
”) which
provides as follows:
“
Where, in
the opinion of the City Council, it is impracticable for storm water
to be drained from higher lying erven direct to a
public street, the
owner of the erf shall be obliged to accept and/or permit the passage
over the erf of such storm water:
Provided that the owners of
any higher lying erven, the storm water from which is discharged over
any lower lying erf, shall be
liable to pay a proportionate share of
the cost of any pipe line or drain which the owner of such lower
lying erf may find necessary
to lay or construct for the purpose of
conducting the water so discharged over the erf.
”
[6]
Accordingly, the main issue for determination relates to whether the
City Council of Johannesburg (“the City of Johannesburg”)
expressed an opinion as contemplated in clause 15(2) of the Town
Planning Scheme. The applicant alleges, in a supplementary affidavit,
that she has obtained such an opinion from the City of Johannesburg.
She concedes, in this respect, that she cannot rely on the
basis set
out in her founding affidavit, but can only succeed if she is
entitled to rely on an opinion provided by the City of
Johannesburg
in terms of clause 15(2) of the Town Planning Scheme. She
relies, in this regard, on a letter received from
Mr J Sello
(“
Sello
”),
dated 29 January 2010, on behalf of the City of Johannesburg:
Executive Director of Development Planning and Urban Management.
The
letter reads as follows:
“
Our
correspondence and the site visit conducted on 29th January 2010
refer.
From the above site inspection and
the attached contour map it is evident that Storm water from Erf 1778
Malvern can only be discharged
to a public street (Galteemore Street)
through Erf 1777 Malvern.
We further confirm that management
of storm water between neighbours of low and high lying erven is
prescribed for as per clause
15(2) of the Johannesburg Town Planning
Scheme, 1979.
Please find
attached the relevant extracts from the Scheme.
”
[7] The
respondents do not object to the applicant’s case as made out
in her supplementary affidavit. They, however, deny
that the City of
Johannesburg had provided the applicant with an opinion in terms of
clause 15(2) of the Town Planning Scheme.
They contend that
they were not consulted by the City of Johannesburg, and that their
property was not inspected by any representative
of the City. They
accordingly dispute the correctness of such “
opinion”
and, in particular, that the storm water can only be discharged to a
public street through their property. They furthermore
contend
that they had no opportunity to make representations on any such
“
opinion
”
prior to the institution of litigation by the applicant.
[8] On 24
May 2010, the respondents’ attorney addressed a formal notice
to the City of Johannesburg: Executive Director of
Development
Planning and Urban Management, in terms of section 5(2) of the
Promotion of Administrative Justice Act 3 of 2000 (“PAJA”),
requesting reasons for the “
opinion”.
When no response was received from the City of Johannesburg, the
respondents’ attorney contacted Sello, telephonically, to
enquire when a response could be expected. Sello informed the
respondents’ attorney, during the conversation, that
he had
visited the applicant’s property at her request. She
thereafter requested a written response from him. He recorded
his
“
comments
”
in writing and sent them to the applicant. He also informed the
respondents’ attorney that he did not provide
the applicant
with an opinion, as contemplated in clause 15(2) of the Town Planning
Scheme, when he recorded his comments in writing
as he had not
inspected the respondents’ property. Sello was requested
to provide the respondents’ attorney with
a written response,
which he did in a letter dated 21 July 2010. It reads as
follows:
“
The
letter addressed to Sharon Du Raan Du Raan
(sic)
dated 29 January 2010 was written as a
response to an enquiry made by Sharon Du Raan regarding the storm
water management on site.
Verbal comments were given to
Sharon Du Raan when she came to make an enquiry and further
telephonic enquiries.
Written comments
were requested by Sharon Du Raan duran
(sic)
.
A site visit was conducted and comments were given in writing.
I am not aware of any enquiry that
your client could have made and hence there is no correspondence to
your client in this regard.
… ”
[9] The
respondents contend that it is clear from Sello
’
s
letter, dated 21 July 2010, that he was never asked by the applicant
to provide an opinion, as contemplated in clause 15(2) of
the Town
Planning Scheme, and nor did he provide such an opinion. Mr Bester,
appearing on behalf of the respondents, argued that
this position is
further supported by the respondents
’
delivery
of a notice, in terms of Uniform Rule 35(12), in which they
requested,
inter alia,
the correspondence referred to in Sello
’
s
letter of 29 January 2010. The applicant
’
s
attorneys denied that the applicant was in possession of any such
correspondence in a letter dated 20 May 2010. Again, when pointed
out
by the respondents
’
attorney in a
letter of response, dated 3 June 2010, that
“…
it
is unlikely that your client sought an opinion from the City and
arranged a site meeting orally
…”
the
applicant
’
s attorney responded by
denying that any such correspondence existed.
[10] The
question that now arises is whether the City of Johannesburg
expressed an opinion in terms of clause 15(2) of the Town
Planning
Scheme, and whether the applicant requested such an opinion. It
is clear from the founding affidavit that the applicant
was aware of
the existence of clause 15(2) of the Town Planning Scheme at the time
of launching her application. There are, however,
no averments in the
founding affidavit which indicate that the applicant requested an
opinion, from the City of Johannesburg, in
terms of clause 15(2) of
the Town Planning Scheme. Although Annexure “
SDR.6
”
to the founding affidavit (which is a letter, dated 23 April 2008,
from the applicant’s attorneys to the respondents’
attorneys) states that the relevant officials of the City of
Johannesburg were consulted by the applicant, and that she was
advised
that it was not only impractical but also impossible for the
relevant storm water to be drained to the public street in front of
her home as the street is higher lying than her backyard, there are
no averments in the founding affidavit which indicate that
an
opinion, as contemplated in clause 15(2) of the Town Planning Scheme,
was requested by the applicant, and that such an opinion
was provided
by the City of Johannesburg. This coupled with Sello’s attitude
that he did not provide an opinion, but merely
expressed his
“
comments
”
on being consulted by the applicant, indicates that Sello was neither
requested by the applicant to provide an opinion,
in terms of clause
15(2) of the Town Planning Scheme, nor did he provide such an
opinion.
[11] The
provision of an opinion by the City of Johannesburg, in terms of
clause 15(2) of the Town Planning Scheme, would constitute
administrative action as defined in section 1 of PAJA. The
provision of such an opinion, by the City of Johannesburg, involves
the exercise of a public power and the performance of a public
function that is prescribed by a by-law, namely the Town Planning
Scheme (
President of the Republic of
South Africa v South African Rugby Football Union and Others
2000 (1)
SA 1
(CC)
at para. 142). The City of
Johannesburg acts in an administrative capacity and not in an
executive capacity when providing an opinion
in terms of clause 15(2)
of the Town Planning Scheme. The opinion, so provided, is thus of an
administrative nature as it concerns
the implementation of the Town
Planning Scheme. It is conclusively settled by our courts that the
implementation of legislation,
including sub-ordinate legislation, is
an administrative responsibility, which is justiciable, and
accordingly constitutes administrative
action (
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
(Treatment Action Campaign and Another as Amici Curiae)
2006 (2) SA 311
(CC) paras. 447-450).
[12] Significantly, any opinion
provided by the City of Johannesburg, in terms of clause 15(2) of the
Town Planning Scheme, would
have the capacity to affect the legal
rights of both the applicant and the respondents by impacting
directly and immediately upon
them. Clause 15(2) of the Town
Planning Scheme clearly envisages that any opinion provided by the
City of Johannesburg would
affect the rights of both the owner of the
higher lying property and the owner of the lower lying property.
Where the City of Johannesburg
provides an opinion, in terms of
clause 15(2) of the Town Planning Scheme, which states it is
impracticable for storm water to
be drained from the higher lying
property directly to a public street, then the owner of the lower
lying property would be obliged
to permit the passage of the storm
water over his or her property and, if necessary, lay or construct a
pipeline or drain for the
purpose of conducting the water discharged
over his or her property. The owner of the higher lying property
would, in turn, be
liable for a proportionate share of the costs of
the construction or laying of any such pipeline or drain by the owner
of the lower
lying property. Put simply, any opinion provided by the
City of Johannesburg, in terms of clause 15(2) of the Town Planning
Scheme,
would be binding on the parties. The owner of the lower lying
erven would therefore be entitled to be:
(a) consulted by the City of
Johannesburg prior to the provision of any such opinion;
(b) given an opportunity to make
representations; and
(c) provided with reasons for
the decision.
[13]
However, as is apparent from the respondents’ supplementary
affidavit as well as Sello’s letter of response, dated
29 July
2010, Sello, acting on behalf of the City of Johannesburg,
inspected the property of the applicant at her request
and, again at
her request, provided a written response in which he recorded his
“
comments
”.
At no stage did he consult with the respondents, inspect their
property or provide them with an opportunity to make
representations. Nor did he provide them with reasons for the
comments which he recorded in writing. Accordingly, a “
comment”
of the nature provided by Sello does not constitute administrative
action as defined in section 1 of PAJA, and is therefore not
justiciable.
[14] It is
important in this respect to draw a distinction between the plain
meaning of the word “
opinion”,
and what is envisaged by the use of the word in clause 15(2) of the
Town Planning Scheme. The Concise Oxford Dictionary (seventh
edition)
attaches,
inter alia
,
the following meaning to “
opinion”
:
“
a view or
judgement not necessarily based on fact or knowledge>the beliefs
or views of a large number of people: the changing
climate of
opinion>an estimation of quality or worth: he had a high opinion
of himself ...”
Hence, a core
distinguishing feature between the plain meaning of the word
“
opinion”,
and
the meaning of “
opinion”,
as contemplated in clause 15(2) of the Town Planning Scheme, is that
the latter is based on law and fact, and is substantiated
with
reasons thus making it binding and justiciable. An opinion provided
in terms of clause 15(2) of the Town Planning Scheme would,
consequently, be more than simply a view or a “
comment”
,
as contended for by Mr Lindeque, who appeared on behalf of the
applicant.
[15] To the
extent that there is an irresolvable dispute of fact in relation to
the question of whether or not the City of Johannesburg
provided the
applicant with an opinion, as contemplated in clause 15(2) of the
Town Planning Scheme, I am obliged to follow the
approach enunciated
in
Plascon-Evans Paints v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634H-635C. Accordingly, the respondents
’
version
must prevail. I therefore accept the respondents
’
version that Sello did not provide an opinion, as
contemplated in clause 15(2) of the Town Planning Scheme, but merely
provided
a
“
comment
”
on
behalf of the City of Johannesburg.
[16] The
onus
to
prove that the applicant obtained an opinion as contemplated in
clause 15(2) of the Scheme rests on the applicant. The
applicant has, however, failed to discharge this
onus
.
As observed by Hurt AJA, in
Pappalardo v
Hau
2010 (2) SA 451
(SCA) at 461B-C,
clause 15(2) of the Town Planning Scheme:
“
is based
upon an assumption that water will be drained onto the street. An
owner wishing to drain it through some other course,
for instance his
neighbour's property, must obtain the opinion of the local authority
that there is no other practical means of
coping with the storm water
before he acquires the right to do so.
[17] In the result, I make an
order dismissing the application with costs.
F
KATHREE-SETILOANE
JUDGE OF
THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT: MR I.M.
LINDEQUE
ATTORNEYS FOR THE APPLICANT:
THERON-RETIEF ATTORNEYS
COUNSEL FOR THE RESPONDENTS: MR
A.BESTER
ATTORNEYS FOR THE RESPONDENTS: MATTHEW
KERR-PHILIPS
DATE OF HEARING: 13 OCTOBER 2010
DATE OF JUDGMENT: 11 NOVEMBER 2010