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[2014] ZASCA 100
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Eye of Africa Developments (Proprietary) Limited v Shear and Others (809/2013) [2014] ZASCA 100 (19 August 2014)
IN THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 809/2013
Not Reportable
In
the matter between:
EYE
OF AFRICA DEVELOPMENTS (PROPRIETARY)
LIMITED
................................
Appellant
and
SHEAR,
CAROLINE
NICOLA
..................................................................................
First
Respondent
THE
MINISTER OF WATER AND ENVIRONMENTAL
AFFAIRS
...................................................................................................................
Second
Respondent
THE
REGIONAL HEAD, GAUTENG REGION DEPARTMENT
OF
WATER AFFAIRS AND ENVIRONMENTAL
AFFAIRS
................................
Third
Respondent
THE
DEPARTMENT OF WATER AFFAIRS AND ENVIRONMENTAL
AFFAIRS
...................................................................................................................
Fourth
Respondent
L
J LEKALE N.O.
…...................................................................................................
Fifth
Respondent
Neutral
Citation:
Eye
of Africa Developments v Shear and others
(809/2013)
[2014]
ZASCA 100
(19 August 2014).
Coram:
Navsa
ADP, Tshiqi, Swain and Mbha JJA, Dambuza AJA
Heard:
19
August 2014
Delivered:
19
August 2014
Summary:
S
21A of the Supreme Court Act 59 of 1959 – appeal dismissed
on the basis that
an order will have no practical effect or result.
ORDER
On appeal from
:
The South Gauteng High Court, Johannesburg (Windell AJ sitting as
court of first instance).
The following order
is made:
1. The appeal is
dismissed on the basis of s 21A of the Supreme Court Act 59 of 1959,
in that the judgment or order sought will
have no practical effect.
2. The appellant is
to pay the respondent’s costs, including the costs of two
counsel.
JUDGMENT
The
Court:
[1] We have taken
into account the admission on behalf of counsel for the appellant
that there was no longer any draw-down on underground
water as there
was presently sufficient grey-water to irrigate the golf-course and
the concession that the environmental authorisation
for the
establishment of the golf-course which restricted irrigation of the
golf-course to grey-water produced on the residential
estate remained
in stead in terms of the judgment of this court in
Eye of Africa
Developments v Shear
2012 (2) SA 186
(SCA). In light of this
counsel for the appellant was constrained to concede that the appeal
is liable to be dismissed on the basis
of s 21A of the Supreme Court
Act 59 of 1959, in that any judgment or order will have no practical
effect or result. This, of course,
has as a result that the order of
the high court remains extant.
[2] The concession
was only made at the commencement of proceedings before us and after
questions were put to the counsel for the
appellant. The issues
raised in the heads of argument were involved and in our view
justifies the costs of two counsel.
[3] The following
order is made:
1. The appeal is
dismissed on the basis of s 21A of the Supreme Court Act 59 of 1959,
in that the judgment or order sought will
have no practical effect.
2.
The appellant is to pay the respondent’s costs, including the
costs of two counsel.
________________________
MS NAVSA
ACTING DEPUTY
PRESIDENT
_______________________
Z L L TSHIQI
JUDGE OF APPEAL
________________________
K G B SWAIN
JUDGE OF APPEAL
_______________________
B H MBHA
JUDGE OF APPEAL
______________________
N DAMBUZA
ACTING JUDGE OF
APPEAL
APPEARANCES:
FOR
APPELLANT: Adv. A P Bruwer
Instructed by:
Du Plessis De Heus &
Van Wyk, Johannesburg
Symington & De
Kok, Bloemfontein
FOR
FIRST RESPONDENT: Adv. G I Hulley (with him K Millard)
Instructed by:
McKenzie, Van der
Merwe and Willemse, Kempton Park
Jordaan Rijkheer and
Partners, Bloemfontein