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[2011] ZAGPPHC 223
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Midstream Home Owners Association and Others v Shoprite Checkers (Pty) Ltd and Others (57688/2010) [2011] ZAGPPHC 223 (21 April 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 57688/2010
Date:
21 April 2011
In
the matter between:
MIDSTREAM
HOME OWNERS
ASSOCIATION
….......................................................
1st
Applicant
MIDFIELD
HOME OWNERS
ASSOCIATION
.................................................................
2nd Applicant
MIDLANDS
HOME OWNERS
ASSOCIATION
...............................................................
3rd Applicant
MIDSTREAM
COLLEGE (PTY)
LTD
...............................................................................
4th Applicant
RETIRE
@ MIDSTREAM HOME OWNERS ASSOCIATION
…....................................
5fh
Applicant
BONDEV MIDRAND (PTY)
LIMITED
................................................................................
6th
Applicant
MARTHINUS
JOHANNES DU
TOIT
...................................................................................
7th
Applicant
and
SHOPRITE
CHECKERS (PTY)
LIMITED
…...............................................................
1stRespondent
THE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY
…...............................
2nd Respondent
HERITAGE
HILL HOME OWNERS
ASSOCIATION
....................................................
3rd
Respondent
JUDGMENT
PRETORIUS
J,
This
is an application which was launched as an urgent application, but
was heard on an arranged date. The applicants are four homeowners'
associations, a private school, a developer and a resident of the
Midstream Estate,
The
applicants seek:
"2.
That the first respondent be interdicted and restrained from
constructing, completing or in any manner utilising for access
purposes the access point which is currently constructing on a
portion of Brakfontein road in respect of which there is an operative
line of no access imposed in terms of the approved amendment scheme
945, an amendment to the then Centurion Town Planning Scheme,
1992
and now the Tshwane Town Planning Scheme, 2008;
3.
in the alternative to the final relief in prayer 2 above, that
interim interdictory relief, in accordance with the terms of prayer
2
above, be granted in favour of the applicants against the first
respondent, pending the finalisation of one or more of the following
proceedings:
'3.1
An application to review and set aside any authorisation or
permission which the second respondent might have granted for the
construction of the access referred to in prayer 2 above;
3.2
An application for a final Interdict against the first respondent
stopping any developments or construction'in breach of the
current
existing environmental authorisation;
3.3
An appeal to the Township Board;
3.4
An application for a mandamus against the second respondent,
compelling it to act against the first respondent in order to procure
suitable orders against the first respondent from stopping it to
conduct any further unlawful activities
4.
The final proceedings have to be instituted within 20 days
from
granting of this order;
5.
That the first respondent be ordered to pay the costs of this
application"
All
the applicants are resident or located within the boundaries of
Midstream Estate. The first respondent, Shoprite Checkers (Pty)
Ltd
(Shoprite), is the owner of Erf 906 Louwlardia Ext 25, Pretoria which
ties south of Brakfontein Road and east of Oiievenhoutbosch
Road.
The
third respondent is the Heritage Hill Home Owners Association.
Heritage Hill is situated on the northern side of Brakfontein
Road.
The third respondent supports the application.
Although
the second respondent had filed an opposing affidavit, the second
respondent did not oppose the application and did not
argue the
matter. The applicants sought no costs from the second respondent
should the application succeed.
On
19 September 2001 the second respondent, City of Tshwane Metropolitan
Municipality, approved an application by the first respondent
to
establish a township on the property. The township was proclaimed on
14 September 2002. The first respondent constructed a distribution
centre upon the property after the second respondent had approved it,
Only one access was approved at the time from Brakfontein
Road onto
the first respondent's property.
The
intended and present use of Brakfontein Road by the first respondent
has iead to the current application, The first respondent
alleged
that the second respondent granted the first respondent authorisation
to construct a second access from Brakfontein Road
onto the first
respondent's property. The applicants are requesting the court to
find that the first respondent should be prevented
from utilizing the
new second access on Brakfontein Road as it was not specifically
approved and granted by the second respondent.
The applicants rely on
the existence of a "line of no access" which was imposed on
Brakfontein Road in Amendment Scheme
945 to the Centurion Scheme, The
applicants argue that the revocation process should have been
subjected to the procedure prescribed
in clause 7 of the Tshwane
Scheme before the second respondent couid have consented to the
construction of the new second access
from Brakfontein Road.
Clause
7 (2) provides:
"The
municipality may prohibit the entrance to or exit from a property to
a public street from any boundary of such property,
this boundary is
indicated by the following symbol on the map: With the proviso that
the Municipality may revoke such access prohibition
on receipt of a
written application for its permission, subject to any conditions
that the Municipality may impose, except in the
case of access .
restrictions in respect of National or Provincial roads."
(Court's emphasis)
The
applicants request the court to find that the second respondent had
not revoked the line of no access along Brakfontein Road.
Subject to
the court's finding the applicants will either seek final relief or
interim relief. Should the court find that the second
respondent had
not revoked the line of no access, the applicants will seek a final
interdict, Should the court,, however, find
that the second
respondent did revoke the line of no access, the applicants request
an interim interdict pending an appeal to the
Township Board, or
review proceedings to the High Court, of mandamus proceedings or
final interdict proceedings before the High
Court on environmental
grounds.
Due
to the fact that the applicants were undecided whether to request an
interim interdict or a final interdict they left it to
the court to
decide which form of relief should be granted, if any. The result was
that counsel for both the applicants and the
respondents argued on
the basis of a final interdict and an interim interdict.
The
question whether a final interdict should be granted must be
considered on the facts as stated by the applicants in their
affidavits
with the admitted facts by the respondent and the alleged
facts by the respondents as there are several factual disputes on the
papers.
In
Plascon Evans Paints Ltd v Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634 H and 635 A - C where Corbett JA found:
"it
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order,
whether it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicants affidavits which
have been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the
Court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the
denial by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bona fide dispute of fact
(see in this regard
Room
Hire. Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd at 1163 -5; Da
Mata v Otto NO
1972 (3) SA 858
(A) at 882D - H). if in such a case
the respondent has not availed himself of his right to apply for the
deponents concerned to
be called for cross-examination under Rule 6
(5)
(g) of the Uniform Rules of Court ( cf Petersen v Cuthbert & Co
Ltd
1945 AD 420
at 428; Room Hire case supra at 1164) and the Court
is satisfied as to the inherent credibility of the applicant's
factual averment,
it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines
whether the applicant
is entitled to the final relief which he
seeks..." (Court's emphasis)
This
finding was confirmed in National Director of Public Prosecutions v
Zuma
[2009] 2 All SA 243
(SCA) where Harms JA held at para 26:
Motion
proceedings, unless concerned with interim relief, are ail about the
resolution of legal issues based on common cause' facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits,
a final order
can be granted only if the facts averred in the applicant's (Mr
Zuma's) affidavits, which have been admitted by the
respondent (the
NDPP), together with the facts alleged by the latter, justify such
order. It may be different if the respondent's
version consists of
bald or uncreditworthy denials, raises fictitious disputes of fact,
is palpably implausible, far-fetched or
so clearly untenable that the
court Is justified in rejecting them merely on the papers. (Court's
emphasis)
The
court has to find whether there are actual factual disputes on the
papers and that the first respondent had set it out adequately
in the
replying affidavit so that the court can decide whether there are
factual disputes, (n Wichtman t/a JW Construction v Headfour
(Pty)
Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
SCA
the court held at p 375:
"[
13] A real, genuine and bona fide dispute of fact can exist only
where the court is satisfied that the party who purports
to raise the
dispute 1 o has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of
course be
instances where a bare denial meets the requirement because there is
no other way open to the disputing party and nothing
more can
therefore be expected of him. But even that may not be sufficient if
the fact averred lies purely within the knowledge
of the averring
party and no basis is laid for disputing the veracity or accuracy of
the averment"
The
factual disputes on the papers before court is whether the second
respondent had approved the revocation of the line of no access;
whether it was necessary for the second respondent to expressly
approve the revocation of the line of no access; whether the first
respondent had to apply for the revocation of the line of no access
and whether it was an implied approval by the second respondent.
The
further dispute is whether the applicants suffer inconvenience as a
result of traffic volumes and whether the value of their
properties
have declined as a result of the use of the second access on
Brakfontein Road. The further dispute is whether the first
respondent
had already implemented the use of the second access as the
applicants deny these submissions by the first respondent.
The
evidence of both the experts for the applicants and the first
respondent is in dispute regarding the Traffic Impact Study.
Mr
Marltz, for the applicants, argued that there was never a person who
had taken the decision to revoke the line of no access,
whilst
counsel for the first respondent denied these allegations and set out
in detail what had transpired, which are denied by
the applicants in
their founding and replying affidavits. The court cannot but find
that there are factual disputes on the papers
which entitles the
court to deal with the matter according to the Plascon-Evans rule.
The
requirements for a temporary interdict were formulated in LF Boshoff
Investments (Pty) Ltd v Cape Town Municipality
1969 (2) SA 256
(C) at
267 A - F by Corbett J (as he then was):
"Briefly
these requisites are that the applicant for such temporary relief
must show-
(a)
that the right which is the subject-matter of the main action and
which he seeks to protect by means of interim relief is clear
or, if
not clear, is prima facie established, though open to some doubt;
(b)
that, if the right is only prima facie estabiished, there is a
wellgrounded apprehension of irreparable harm to the applicant
if the
interim relief is not granted and he ultimately succeeds in
establishing his right;
(c)
that the balance of convenience favours the granting of interim
relief; and
(d)
that the applicant has no other satisfactory remedy.
(See
Gool v Minister of Justice and Another , at pp. 687 - 8;
Pietermarltzburg City Council v Local Road Transportation Board at
p.
772). Where the applicant cannot show a clear right, and more
particularly where there are disputes of fact, the Court's approach
in determining whether the applicant's right is prima facie 1
established, though open to some doubt, is to take the facts as set
out by the applicant, together with any facts set out by the
respondent which the applicant cannot dispute, and to consider
whether,
having regard to the inherent probabilities, the appficant
should on those facts obtain final relief at the trial of the main
action"
(Court's emphasis)
Brakfontein
Road is the only access to Midstream Estate. The undisputed facts in
the present application are that Brakfontein Road,
a public road,
connect the Midstream estate with the N1 highway, the first
respondent established a commercial site south of Brakfontein
Road
halfway between the N1 highway in the east and Midstream Estate in
the west, the first respondent applied to the second respondent
to
establish a township on the 49 hectare property adjacent to
Brakfontein - and Olievenbosch Roads during 2001, which had been
granted in 2001.
During
1999 the first respondent had developed a blueprint for the design of
the distribution centre which at that time already
included the first
respondent's intended expansion plans and three future access points,
two on Brakfontein Road and one on Ollevenhoutbosch
Road,
The
applicants contend that only approximately 58 meters are allowed for
access from Brakfontein Road and that a line of no access
had been
imposed by the second respondent upon the entire northern cadastral
boundary along Brakfontein Road. The only other access
allowed by the
second respondent, according to the applicants is 85 meters in the
south western sector of the property where there
is access to
Ollevenhoutbosch Road. Thus there are only two approved breaks in the
line of no access imposed by the second respondent,
according to the
applicants, one on Brakfontein Road and one on Ollevenhoutbosch Road.
The
second respondent approved the application and in principle approved
a FSR of 0.4 on the property on 19 September 2001 in condition
4 (2)
(c) of its approval which reads as follows:
"The
FSR will be restricted to 0t21, but can be increased to a maximum of
0,4 with.the written consent of the local authority
(Clause 15
consent use procedure excluded.)" (Court's emphasis)
This
condition was inserted at the request of the first respondent as the
first respondent did not intend to pay rates and taxes
on the higher
FSR of 0.4 until such time that they had to apply for the higher FSR
as set out in condition 4 (2) (c).
The
service agreement concluded on 16 August 2001 between the first and
second respondents made provision that the first respondent's
contributions to the second respondent for external engineering
services were calculated on the FSR of 0.4:
"It
Is recorded that the bulk service contributions and the proportionate
bulk contribution have been calculated and determined
on the maximums
development potential of the land use rights of the township i.e. a
floor space ratio of 0,4 which will for purposes
of this agreement
apply notwithstanding the fact that such rights or part thereof are
not fully and immediately exercised by the
developer or are subject
to future restrictive conditions." (Court's emphasis)
Mr
Grobler, on behalf of the first respondent, argued that at the time
that the sixth respondent marketed the Midstream Estate the
only
entrance to the Estate was on Brakfontein Road. Prospective buyers of
residential property in Midstream had to pass the first
respondent's
distribution centre on Brakfontein Road and had to be aware of this
fact at the time of buying a property in Midstream
Estate or
establishing an entity on the Estate. An industrial corridor had been
established in that area in the late 1-9S0's and
early 2000's, before
the residential area was proclaimed.
During
April 2008 the first respondent applied to the second respondent, who
had already consented to the establishment of a township
on the first
respondent's property, on condition that the difference between the
FSR of 0,21 and the in-principie approved FSR
of 0,4 could be applied
for without subjecting the application to public participation and an
advertising process as set out in
clause 15 of the then governing
Centurion Scheme to increase the FSR from 0,21 to 0,4. In the consent
on 19 September 2001 it was
set out by the first respondent:
"The
FSR will be restricted to 0,21, bat can be increased to a maximum of
0,4 with the written consent of the local authority
(Clause 15
consent use procedure excluded.)"
On
9 October 2008 the second respondent approved the application by the
first respondent:
"The
City of Tshwane approved your application to increase the Floor Area
Ratio from 0,21 to 0,4 on Erf906} LOUWLARDIA subject
to the following
conditions:
That
the Floor Area Ratio shall not exceed 0,4;
That
the requirements of the Centurion Town-planning Scheme,
1992
remain applicable.
That
the Municipality's approval in the above regard, should not be seen
or interpreted thus being so, as approval or approval in
principle,
of any application that may follow on the relevant erf. Attached
please find the comments from the various departments
for
your
attention."
This
approval was signed by a Mr van den Berg on behalf of Ashok Sudu,
Acting Strategic Executive Director/City Planning, Development
and
Regional Services. The second respondent attached the comments of the
various departments of the second respondent to the approval
which
provided in clause 8 of the City Planning, Development and Regional
Services that:
"Entrances
to and exits from the erf shad be located, constructed and maintained
to the satisfaction of the Municipality
During
February 2009 the first respondent submitted a Traffic Impact Study
to
the
second respondent for approval of the:
"Proposed
New Accesses for Extended Distribution Centre Facilities at Shoprite
Centurion, Erf 906 Louwlardia Extension 25."
It
set out specifically in paragraph 5 with specific reference to
Brakfontein Road:
"The
proposed extended warehousing facilities will have the following
accesses:
-
Access 1 from Brakfontein Road, proposed new access 570m to the east
of the Ollevenhoutbosch Drive/Brakfontein Road intersection:
This
access will be used only for inbound heavy vehicle traffic.
-
Access 2 from Brakfontein Road, 300m to the east of the
Ollevenhoutbosch Drive/Brakfontein Road .intersection: This existing
access to the office building will only be a ieft-in, ieft-out access
in the
future
for the office park in the northeast corner of the development and to
the parking area for the personal cars of the truck
drivers of the
Shoprite Distribution Centre."(Court's emphasis)
The
Traffic Impact Study was severely criticized by the applicants'
expert, Dr Joubert Dr Jouberf was of the opinion that there
was a
fundamental flaw in the study of the division of incoming traffic as
inter alia,no mention is made of pedestrians. He further
criticized
the time the traffic signal will be green and states that it will
result in long queques and pile-ups at the relevant
intersection.
Dr
Krogscheepers, on behalf of the first respondent, indicated that no
pedestrian access is allowed on the new access road as agreed
with
the second respondent. Pedestrians will have to utilize the
intersection at either Ollevenhoutbosch Road or Emus Erasmus Road.
He
further indicates that the traffic signal will be adjusted according
to the relevant traffic patterns. The first respondent
is correct in
averring that that these differences are factual disputes which can
only be addressed at a proper hearing where both
experts can testify
and be cross-examined. Therefor the Ptascon Evans rule is applicable.
The applicants are of the view that even
if an extra point of access
was contemplated when the property was fully developed that
interested persons should have been afforded
an opportunity to make
their views known / to the second respondent.
On
28 April 2009 the Traffic Impact Study was approved which allowed for
the new access on Brakfontein Road. On 28 April 2009 the
Executive
Director: Roads and Stormwater provided in regards to the Traffic
Impact Study:
"The
applicant must comply with the access arrangements, parking demands
and road upgrades as have been stated in the Impact
study. All road
improvements as have been stated in this impact study must be in
place or satisfactory guarantees for the construction
of the said
road-upgrades must have been provided to the CoT. "
Mr
Maritz, counsel for the applicants, argued that the person who had
taken the decision to revoke the line of no access did not
have the
authority to do so. This issue was never pleaded by the applicants
and the court agrees with counsel for the respondent
that this court
should not entertain this issue as it was not part of the applicants'
case.
The
applicants main complaint is that there is no evidence that a
specific decision was taken to revoke the line of no access on
Brakfontein Road. It is clear from the minutes of the mayoral
committee meeting held on 14 November 2007 that the powers arising
from the Tshwane Townplanning Scheme 2007 were delegated to the
Executive Mayor who may sub delegate the following to the Municipal
Manager and who may sub-delegate it to the to the Strategic Executive
Director: City Planning, Development and Regional Sehvces.
This
delegation is applicable in terms of clause 2 of the delegation on:
"To
revoke or maintain access prohibition in terms of clause 7 (2) for
the entrance to or exit from a property to a public
street from any
boundary of such property and to lay down conditions."
The
applicants rely on the fact that according to the first respondent
the line of no access was revoked on 9 October 2008 when
approval to
increase the floor area ratio was approved. According to the second
respondent the date was 29 September 2009 when
the Site Development
Plan was approved - a year later. The applicants are of the opinion
that both respondents rely on the implied
revocation of the line of
no access as an afterthought. On 29 September 2009 the Site
Development Plan was approved by the Building
Control Officer as set
out in the letter:
"Application
for approval of the siting and appearance of proposed additions to
distribution centre for Shoprite Checkers on
erf 906, Louwlardia
extention 25
Your
application in above regard as indicated on drawings received on 23
January 2009 was approved on 29 September 2009, subject
to the
following condifion(s):
1.
This approval will lapse within 12 months after date, if building
plans are not submitted.
2.
All signage to be a separate application with Street Scape Management
3.
This approval must not be construed as being approval of the building
plans."
The
second respondent agreed that clause 7 (2) of the Tshwane Scheme
makes provision for the revocation of an access prohibition
"on
a written application for its permission". This application is
in terms of the provisions of clause 15 of the Tshwane
Scheme. Both
the first and second respondents are of the view that clause 16 does
not apply as no advertisement was necessary.
According
to the second respondent the first respondent did comply with the
provisions of clause 7 (2) as the Traffic impact Study
dealt
extensively with the new accesses as can be seen by the documents
"Traffic impact Study, Proposed New Accesses for Extended
Distribution Centre Facilities at Shoprite Centurion, Erf 906
Louwlardia Extension 25" dated 9 February 2009 and is regarded
as the motivating memorandum by the second respondent. The power of
attorney, copy of the title deed and the zoning certificate
had
already been submitted with the application for written consent to
increase the floor space ratio.
On
15 July 2010 the second respondent approved the first respondent's
application for the installation of a new traffic signal on
Brakfontein .-Road which would be paid for by the first respondent.
The first and second respondents rely on the approval of the
Site
Development Plan and the Traffic impact Study as an express or
implied approval of the second access on Brakfontein Road as
the
Traffic Impact Study dealt specifically with the two access roads on
Brakfontein Road.
On
25 January 2010 the second respondent granted a way-leave to the
first respondent authorising the first respondent to commence
with
the construction of the widening of the road in order to create the
new access. This was approved and signed by the Executive
Director -
Roads and Storm Water of the second respondent.
By
October 2010 the new access road was completed and by January 2011
the traffic signal was installed and commissioned. These facts
are
disputed by the applicants as they submit that they have not seen
trucks using the new access as stated by the first respondent.
Once
again the court has to decide these facts on the applicants' version
as confirmed by the first respondent's version and where
the two
versions differ the respondents' version must be accepted.
The
applicants argue that the line of no access on Brakfontein Road had
not been revoked by the second respondent and therefore
a second
access on Brakfontein Road cannot be sustained and should not be
allowed. The first respondent submitted that the process
that was
followed as set out above implies that the line, of no access had
been expressly, alternatively by implication revoked
by the second
respondent. The second respondent confirmed this submission by the
first respondent.
The
second respondent indicated to the court that the Tshwane Scheme
itself does not prescribe a process that has to be followed
when an
application is made for the revocation of a line of no access in
terms of clause 7(2).
It
is ciear from the minutes of the second respondent's council meeting
on 29 November 2007 that the council had resolved:
"The
Tshwane Scheme, as amended, be adopted.
That
the procedure for permissions in terms of the Tshwane Scheme,
as
set out in Annexure 5, be approved."
The
process prescribed by this resolution provided for in clause 7(2) has
been set out above, The Tshwane scheme does not contain
a definition
of "application" and does not prescribe any procedural or
other conditions that must be followed when an
application is made.
Clause 15: Permission of the Municipality provides:
"The
permission of the Municipality to use land and buildings or to relax
certain conditions stipulated in the Scheme, Us Schedules
and
Annexures, where such permission is explicitly stated, shall be
subject to an application procedure as required by the Municipality
and such application shall be subject to the following:
(1)
documents as prescribed by the Municipality shall be submitted with
the prescribed fee;
(2)
the prescribed advertisement procedure shall be complied with and the
Municipality may waive this requisite wholly or partly
if it is
satisfied that such non-compliance is not of such a material nature
that it is likely to effect anyone detrimentally;
(3)
the Municipality may approve or refuse such application subject to
such condition the Municipality deems necessary to regulate
such
nermisshn; and
(4)
the Municipality- may require that a contribution in respect of
engineering services is payable in terms of section 20 of the
Town-planning and Townships Ordinance, 1986 (Ordinance 15 of 1936} as
and when required by the Municipality."
The
first respondent's counsel, Mr Grobler, argued that by compliance
with the conditions as set out in clause 7 (2) the second
respondent
had revoked the line of no access when approving the Traffic Impact
Report and the Site Development Plan.
The
procedure to be followed in terms of clause 7 (2) is;
1
'Written application must be submitted to City Planning and shall 1
contain the following:
a)
A motivating memorandum;
b)
Power of attorney if the applicant is not the owner;
c)
Copy of the title deed;
d)
Site plan indicating the access required;
e)
Zoning certificate and/or Annexure B/ Annexure T/ Annexure or
Schedule or Consent use
f)
Application fee.
Advert
not necessary Circulate to Transport Engineers and Traffic section."
(Court's emphasis)
The
first respondents complied with these provisions as the documents
which had not been supplied with the original application
to
establish a township were provided to the second respondent with the
further documents in the application to increase the FSR
from 0,21 to
0,4, the TraffiG Impact Report and Site Development Plan during 2008
and 2009 and approved by the second respondent.
The
applicants request an interim interdict pending a review to the High
Court. Mr Grobler, for the first respondent, argued that
the
applicants will not have locus standi in an application for the
review of an administrative decision as they will not be able
to show
a direct and substantial interest in the matter.
In
Roodepoort Nlaraisburg Town Council vs Eastern Properties (Prop.)
Ltd. 1933 AD Wessels CJ found at p 101;
The
actio popularis is undoubtedly obsolete, and no one can bring an
action and allege that he is bringing it in the interest of
the
public, but by our law any person can bring an action to vindicate a
right which he possesses (interesse) whatever that right
may be and
whether he suffers special damage or not, provided he can show that
he has a direct interest in the matter and not merely
the Interest
which alt citizens have. Nemo enim privatorum populares persequitur
actiones quoad interesse publicum. Pro suo autem
Interesse cuilibet
sive per se sive per procuratorem agere licet - Groenewegen , de
Leg.- Abr ad D. 47.23."
The
first respondent argued that the applicants have to show that the\
Tshwane Scheme was enacted for their benefit or for the benefit
of a
class of which they are members, alternatively that they have
suffered or is likely to suffer damage. Mr Grobler, for the
first
respondent, argued that the applicants properties are all in the
Municipality of-Ekurhuleni whilst the first respondent's
property and
Brakfontein Road at that juncture fall in the area of the second
respondent. The court finds that fact immaterial
to adjudicate the
present application.
In
VandenHende v Minister of Agriculture, Planning and Tourism, WC
2000
(4) SA 681
CPD Thring J held at 686 I - 687 A -B;
"In
my view the most useful source of guidance as to the approach which
should be adopted in this case is to be found in the
decisions of our
Courts which, over the years, have dealt with the intervention and
joinder of parties, I say this because at all
stages of this matter
up to the launching of this review application the dispute about the
rezoning of the property has been between
the sixth and seventh
respondents, as its owners, on the one hand, and the objectors, and,
in particular, the fifth respondent,
on the other. By launching the
review application the applicant is, it seems to me, in effect
seeking to intervene in that dispute
as an interested party. There is
authority as to whether, and in what circumstances, a party may
intervene in litigation, or be
joined as a party to it
In
United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd
and Another Corbett J, as he then was, said at415A- C:
'In
my opinion, an applicant for an order setting aside or varying
a
judgment or order of Court must show, in order to establish locus
standi, that he has an interest in the subject-matter of the
judgment
or order sufficiently direct and substantial to have entitled him to
intervene in the original application upon which
the judgment was
given or order granted."' (Court's emphasis)
The
applicants will rely on review that they had had a right to be heard
as interested persons as residents of Midstream before
the decision
was made. The decision by the second respondent to grant access
constitutes "administrative action" as defined
in section 1
of PAJA, The only parties involved in the application for granting of
access were the first and second respondents.
The
applicants have to show a direct and substantial interest in the
matter to bring an application for review of an administrative
decision as set out in Vandenhende" v Minister of Agriculture,
Planning and Tourism, WC [supra) at 690 i - 691 A:
"For
the applicant to have locus standi to bring this application, then,
it
seems
to me that it must be established that:
(a)
he has a direct and substantial interest;
(b)
in the right which is the subject-matter of this litigation;
(c)
which is not merely a commercial or financial interest, but which
constitutes a legal interest; and
(d)
which could be prejudicially affected by the outcome of the
litigation,"(Court's emphasis)
in
Walelo v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
CC at para 27
Jaffa AJ held:
"There
can be no doubt that when approving building plans, a local authority
or its delegate exercises a public power constituting
administrative
action,,. What gives rise to the right to be heard is the negative
impact of the decision on the rights or legitimate
expectations of
the person claiming to have been entitled to a hearing before the'
decision was taken." (Court's emphasis)
The
applicants afieged that they had to be heard by the first respondent
before the decision was taken as they are residents of
Midstream and
as such are interested persons.
It
is clear that none of the applicants were involved in the
administrative relationship between the first and second respondents
when the decision was taken. They were not objectors in this instance
at the time the decision was taken. Furthermore, Brakfontein
Road is
a public road for the use of ail road users and as such the
applicants do not have sole use of the road.
No
review will be entertained by another court until the applicants had
exhausted their internal remedies against the revocation
of the line
of no access. Section 7 (2) (a) of PAJA provides:
"(2)
(a) Subject to paragraph (c) , no court or tribunal shall review an
administrative action in terms of this Act unless
any internal remedy
provided for in any other law has first been exhausted."
The
first respondent was exempted in 2001 from following the public
participation process for an increase of FSR from 0,2.1 to 0,4
as set
out in clause 15 of the Centurion Scheme, This process was sanctioned
by the second respondent on 21 September 2001which
specifically
abolished any advertisement requirement
It
is so that the decision of the second respondent to grant access and
to revoke the line of no access constitutes administrative
action.
Section 3 of PAJA provides:
"3
Procedurally fair administrative action affecting any person:
(1)
Administrative action which materially and adversely affects the
rights or legitimate--expectations of any person must be procedurally
fair,
(2)
(3)
(4)
(a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from any of the requirements referred
to in
subsection (2),
(b)
In determining whether a departure as contemplated in paragraph (a)
is reasonable and justifiable, an administrator must take
into
account alt relevant factors, including-
(I)
the objects of the empowering provision;
(ii)
the nature and purpose of, and the need to fake, the administrative
action;
(iii)
the likely effect of the administrative action;
(iv)
the urgency of taking the administrative action or the urgency of the
matter; and
(v)
the need to promote an efficient administration and good governance."
The
only parties involved in the application for granting of access were
the first and second respondents from the start; In Walele
(supra) if
was found at 10 paragraphs 31 and 32:
"[31]
On a proper construction of s 3, the applicant's claim to a hearing
can only succeed if be establishes that the decision
to approve the
building plans materially and adversely affected his rights or
legitimate expectations. The parties involved in
the application for
the approval were the respondents and the City. The applicant was not
a party to that process nor was he entitled
to be Involved, The
building plans in question were drawn at the instance of the
respondents who wanted to erect the four-storey
block of flats on
their own property. The granting of the approval could not, by
itself, affect the applicant's rights.
[32]
It will be recalled, however, that the applicant's case is that the
erection of the flats will devalue his own property and
may trigger
other disqualifying factors in s 7(1) (b) (ii) of the
Building''Standards Act He does not contend that the approval
itself
will lead to those consequences, The question is whether
'administrative action' as contemplated in s 3 of PAJA should be
construed to encompass the subsequent erection of fiats, I think not.
Such interpretation would not constitute a reasonable reading
of the
section which requires a pre-existing right or legitimate expectation
to be materially and adversely affected by the administrative
decision itself/' (Court's emphasis)
Unfortunately
for the applicants they did not prove a pre-existing right or
legitimate expectation that they would be materially
and adversely
affected by the administrative action of the second respondent by the
revocation of the line of no access on Brakfontein
Road.
The
decision in Walele (supra) is applicable in the current application
before court where Thring J found at paragraph 42:
"[42]
I fail to appreciate how the second fact could have given rise to a
legitimate expectation. Being the owner of the neighbouring
property
cannot give rise to an expectation to be heard in circumstances such
as the present, let alone a reasonable expectation.
A legitimate
expectation may arise from an express promise or a regular practice.
It cannot arise from ownership of a neighbouring
property, it follows
that the applicant has failed to establish that he had a right or a
legitimate expectation materially and
adversely affected by the
approval of the plans. Absent an affected right or a legitimate
expectation, the applicant cannot challenge
the approval on the basis
that he ought to have been heard and was denied a pre-decision
hearing." (Court's emphasis)
I
must agree with Mr Grobler, for the applicants, that no legitimate
expectation had been alleged or proved. The requirements for
a
legitimate expectation are set out in Duncan v Minister of
Environmental Affairs and Tourism
2010 (6) SA 374
SCA by Brand JA in
paragraph 15:
"[15]
Reliance on the doctrine of legitimate expectation for any purpose
presupposes that the expectation qualifies as legitimate.
The 1C
requirements for the legitimacy of such expectation have been
formulated thus:
(a)
The representation inducing the expectation must be clear,
unambiguous and devoid of any relevant qualifications,
(b)
The expectation must have been induced by the decisionmaker,
(c)
The expectation must be reasonable,
(d)
The representation must be one which is competent and lawful for the
decision-maker to make." (Court's emphasis)
None
of these requirements are met In the present application by the
applicants.
Furthermore
the applicants have not yet exhausted all the internal remedies and
cannot apply for a review in terms of PAJA until
it has been done.
The applicants could, according to Mr Grobler, establish a clear
right by proving that they'have suffered or
is likely to suffer
damage. No actual evidence was supplied apart from vague allegations
relating to the inconvenience suffered
by the applicants due to the
traffic volumes and loss of property values. There is a factual
dispute in this regard and therefore
according to the Piascon Evans
rule the court must deal with it on the applicants' version as
admitted by first respondent on the
papers before court and where it
differs from the applicants' version the repondent's version will be
accepted.
The
resolution taken by the second respondent did not require public
participation as was set out in the approval of the application
on 19
September 2001 where the provisions of clause 15 were excluded, in
any event no court will hear the review application before
the
internal remedies have been exhausted.
The
applicants further, in the alternative, requested the court to grant
interim relief pending the outcome of the appeal to the
Townships
Board. The first respondent set out the reasons why the first
respondent believes that the applicants have no chance
of success at
abovementioned proposed actions. The first respondent argues that in
this instance the applicants have no locus standi
to appeal to the
Townships Board in terms of section 139 of the 1988 Ordinance.
It
is common cause that the applicants did not attend any hearing before
second respondent. In Vandenhende v Minister of Agriculture,
Planning
and Tourism, WC (supra) Thring J held at 688 B - E: ;
The
only locus standi which the applicant had to participate in the
rezoning application as a party in his own name was as an
objector."(Court's
emphasis)
Counsel
for the first respondent argued that it will be impossible for the
applicants to convince this court that the Townships
Board appeal
hearing will have a favourable outcome for the applicants, The
hearing before the Townships Board will entail a de
novo hearing. The
applicants do not deal with the aspect of the success they expect to
have on the hearing of the appeal before
the Townships Board: The
first respondent argues that the fact that an appeal has been lodged
does not provide a prima facie case
to have the revocation set aside
without any information" as to the prospects of success on the
merits of the appeal or any
reference to a town planning expert.
There is no indication before the court of any reasons that the
applicants will succeed on
the merits in the pending appeal to the
Townships Board.
Mr
Grobler, for the first respondent, argued that the applicants had not
made out a case on their founding papers that the Record
of Decision
(RoD) had lapsed. The applicants did not set out in the founding
affidavit that the RoD did not cover the expansion
of the warehouses
and that the first respondent is engaging in construction activities
within an area which had to be preserved,
contrary to the RoD, it is
dear that the first respondent had not acted contrary to the
provisions of the RoD.
In
Bayaf v Hansa
1955 (3) SA 547
IN) at 553 C - E the court stated;
"...an
applicant for relief must (save in exceptional circumstances) make
his case and produce alt the evidence he desires
to use in support of
it, in his affidavits filed with the notice of motion, whether he is
moving ex parte or on notice to the respondent,
and is not permitted
to supplement it in his replying affidavits (the purpose of which is
to reply to averments made by the respondent
in his answering
affidavits), still less make a new case in his replying affidavits."
(Court's emphasis)
In
Titty's Bar and Bottle Store v ABC Garage and Others
1974 (4) SA 363
(TPD)
Viljoen J found at 369 B:
"It
lies, of course, in the discretion of the Court in each particular
case to decide whether the applicant's founding affidavit
contains
sufficient allegations for the establishment of his case. Courts do
not normally countenance a mere skeleton of a case
in the founding
affidavit, which skeleton is then sought to be covered in flesh in
the replying affidavit" (Court's emphasis)
The
issue of the Rod is not a new issue and was known to the applicants
when they launched the application. They do not explain
why this
issue was only mentioned in their replying affidavit and
supplementary replying affidavit for the first time. The court
has to
agree with Mr Grobler that it is too late for the applicants to rely
on the RoD. They only mention in the replying affidavit
sets out that
it had lapsed that it, did not cover the expansion activities of the
first respondent and that the first .respondent
is engaging in
construction activities in a preservation area.
I
must agree with Mr Grobler that it seems as if the environmental
issues were raised at a late stage to create atmosphere. It is
obvious that the applicants had not relied on the environmental
issues when launching the application as they do not make a case
that
the new access is situated on a preservation ' area or on what basis
they will succeed in a review application based on environmental
issues. The chances of success in a review application on the
environmental issues seem to be slim.
The
court has considered the applicants prayer in the notice of motion
for a mandamus against the second respondent compelling the
second
respondent to stop the first respondent from "any further
unlawful activities,"'There are no facts before court
which
would entitle the court to grant a mandamus against the second
respondent.
The
first respondent argued that the applicants delay in bringing the
application must be taken into consideration. The second respondent,
approved the establishment of a township on the first respondent's
property: from 0,21 to 0,4 without following the Centurion Scheme.
The
second respondent's approval to increase the FSR from 0,21 to 0,4 is
dated 9 October 2008 and if the second respondent's date
is taken as
to be correct for granting a revocation it is 29 September 2009 .
This provides, inter alia, for a new access to be
created in
Brakfontein Road. The first decision was thus taken almost ten years
ago and the second decision two years and five
months or 1 year and 5
months respectively prior to the launching of the application. The
second respondent approved the first
traffic impact study on 28
February 2009. It is common cause that the access has been built,
that a traffic signal has been installed
and that the first
respondent has spent in excess of R345 million on the further
development of the property and have created the
new access to
implement the one-direction system of traffic-flow which has since
been implemented.
In
Wolgroeiers Afslaers Wolgroeiers Afslaers v Munisipaliteit van
Kaapstad 1978 (1) 13 A the principle was laid down that the court
first has to decide whether the proceedings had been instituted
within an unreasonable time, and if so, whether the court should
condone the unreasonable time.
in
the first instance the court does not have a discretion, but the
court has to consider all the facts to decide whether the delay
has
been unreasonable. In the second instance the court has a discretion
to decide whether the unreasonable delay should be condoned.
In
Gqwetha v Transkei Development Corporation Ltd and Others
2006 (2)
SA
603
SCA Nugent AR found in par 22:
"it
is important for the efficient functioning of public bodies (i
include the first respondent) that a challenge to the validity
of
their decisions by proceedings for judicial review should be
Initiated without undue delay The rationale for that longstanding
rule - reiterated most recently by Brand JA in Associated
Institutions Pension Fund and Others v Van Zyl and Others at 321 - is
twofold: First, the failure to bring a review within a reasonable
time may cause prejudice to the respondent. Secondly, and in
my view
more importantly, there is a public interest element in the finality
of administrative decisions and the exercise of administrative
functions. As pointed out by Miller JA in Wolgroeiers Afsfaers (Edms)
Bpk v Munisipaliteit van Kaapsiad at 41F - F (my translation):
'It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has elapsed -
interest reipublicae ut sit finis litium .... Considerations
of this
kind % undoubtedly constitute part of the underlying reasons for the
existence of this rule.1
[23]
Underlying that latter aspect of the rationale is the inherent
potential for prejudice, both to the efficient functioning of
the
public'/ body and to those who rely upon its decisions, if the
validity of its decisions remains uncertain." (Court's
emphasis)
In
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 (6)
SA 222
SCA te 249 H -1 the court find:
"In
weighing the question whether the lapse of time should preclude a
court from setting aside the invalid administrative act
in question
an important - perhaps even decisive - consideration is the extent to
which the appellant or third parties might have
acted in reliance
upon it"
and
in Oudekraal Estates (Pty) Ltd v City of Cape Town
2010 (1) SA 333
SCA in par 33 Navsa AR find:
"in
reviewing and considering whether to set aside an administrative
decision, courts are imbued with a discretion, in the
exercise of
which relief may be withheld on the basis of an undue and
unreasonable delay causing prejudice to other parties,
notwithstanding
substantive grounds being present for the setting
aside of the decision. The application of the delay rule would in a
sense 'validate'
a nullity This rule evolved because, prior to the
Promotion of Administrative Justice Act 3 of 2000 (PAJA), no
statutorily prescribed
time limits existed within which review
proceedings had to be brought The rationale was an acknowledgment of
prejudice to interested
parties that might flow from an unreasonable
delay as well as the public interest in the finality of
administrative decisions and
acts." (Court's emphasis)
The
180 day period prescribed in PAJA cannot be relied on as in this
Instance ten years, two years and five months: and 1 year and
five
months have elapsed since the respective administrative decisions had
been taken. The applicants can thus not rely on the
provisions of
PAJA as they are so far out of time. However in Zuurbekom Ltd v Union
Corporation Ltd
1947 (1) SA 514
(A) at 537 the court found:
"But
if it is correctly stated in the Laws of England, mere delay should
not deprive the plaintiff of his right to an injunction;,
the
circumstances must be such that the enforcement of the right by the
plaintiff would really be an act of bad faith on his part.
Whatever
the nature of the inequity must be to justify the application of the
doctrine according to English law, the question
before us is in what
circumstances in interdict proceedings can according to our law the
plaintiff's delay be set up successfully
by the defendant as a bar to
the granting of the interdict? I am prepared to assume, for the
purposes of the argument, that something
falling short of conduct
constituting an estoppel against the plaintiff may be. embraced by
the defence known as the exceptio doll
But even on that assumption it
seems to me that, before the plaintiff's delay can be a valid
obstacle to his claim for an interdict,
it must be shown (as the very
name exceptio doll 1 indicates) that in the circumstances of the
particular case the enforcement
of that remedy by the plaintiff would
cause some great inequity and would amount to unconscionable conduct
on his part," (Court's
emphasis)
In
the present application, however, the first respondent has already
implemented the expanded strategy and everything is in use,
including
the disputed access. The court has to consider these facts along with
alt other facts when determining the balance of
convenience.
The
court has to consider whether the applicants are enfitied to a final
interdict. The applicants seek a final interdict as, according
to
them, they have a clear right of enforcing the provisions of the
Amendment Scheme 945 which forbids the second access on Brakfontein
Road, It is trite that the weaker the applicants prospects of success
the greater the need for the applicants to establish that
the balance
of convenience favours them for interim relief.
In
Patz v Greene & Co
1907 TS 427
at 437 the Full Bench through
Solomon J held:
"If
then the applicant can satisfy the Court that his business is without
doubt suffering through the respondents illegal competition,
the
first requisite for an interdict would be present in this case,
namely, "a clear right on the part of the applicant"
On the
same hypothesis the second requisite, namely "an injury actually
committed on the pari of the person to be interdicted,"
would
also be present." (Court's emphasis)
The
first respondent submits that there is no proof of injury which would
entitle the applicants to a final interdict. I find that
the
applicants have not made out a case that they are suffering any
injury at present, apart from inconvenience and'vague submissions
as
to the properties of the applicants losing value and experiencing
heavy traffic as a result of the respondents' actions, without
any
expert evidence to confirm the allegations. The requirement of injury
was not addressed at all by counsel for the applicants.
No facts were
presented to the court to show on which facts the applicants are
relying in these instances. No future injury is
alleged. The access
is complete and has been in use for some time, The applicants had
known of the distribution centre of the first
respondent before
Midstream Estate was established.
The
court has to determine whether the applicants have a prima facie
right. 10 To determine this court has to consider ail the facts
to
decide whether the applicants have proved a "prima facie right
though open to some doubt" Even if the court considers
all the
facts, arguments and authorities and take into consideration whether
the applicants could obtain final relief at trial
and that a lesser
degree of proof is required for an interlocutory interdict, the court
cannot find that the applicants have established
a prima facie right
on a balance of probabilities.
The
requisites for a final interdict must be met for the court to grant
such relief. The court finds, after having listened to the
arguments
by counsel, reading all the papers and considering all the
authorities, that the applicants have not proved a clear right
on a
balance of probabilities. The facts stated by the first respondent
taken in conjunction with the admitted facts in the applicants'
affidavits do not justify the court to find in favour of the
applicants and to grant a final interdict.
Furthe'rmore
there is no specific and clear evidence of any committed or
apprehended injury to the applicants. In von Moltke v Costa
Areosa
(Pty) Ltd
1975 (1) SA 255
C at 258 D-E Diemont J held:
"It
is not necessary to labour the point further. Whether he proceeds by
way of summons or on motion the party seeking relief
must show that
he is suffering or will suffer some injury, prejudice, or damage or
invasion of right peculiar to himself and over
and above that
sustained by the members of the public in general. It is not enough
to allege that a nuisance is being committed,
he must go further and
at the very least allege facts from which it can be inferred that he
has a special reason for coming to
Court." (Court's emphasis)
Even
when the court applies the objective test to determine whether there
is a reasonable apprehension that the applicants may suffer
injury
the court cannot find that the apprehension as set out in the
applicants' affidavit is well grounded,
In
this matter the applicants themselves mentioned other remedies, when
applying for an Interim interdict. It thus follows that
they cannot
overcome the hurdle of "no other remedy.''
As
to the requisites for an interlocutory interdict the applicants did
not provide the court with any facts having regard to the
reasonable
apprehension that irreparable harm will ensue should the alleged
wrong continue whilst the applicants finalize the pending
legal
actions. The test to decide whether irreparable harm will be done to
the applicants if the interim interdict is not granted
is an
objective test. The court has dealt with this aspect when the court
considered whether a final interdict should be granted.
To determine
whether the balance of convenience favours the applicants to grant
interim relief the court has to weigh the prejudice
the applicants
will suffer if the interim interdict is not granted against the
prejudice the first respondent will suffer should
it be granted. The
weaker the prospects of success the greater the need for the balance
of convenience to favour the applicants.
The
applicants set out in the founding affidavit that it is expected that
"a huge number of heavy duty vehicles and trucks
are going to
enter the relevant property from the entrance at Brakfontein Road".
According to the applicants this would cause
"huge traffic
pile-ups, frustration, Inconvenience and prejudice for the residents
of Midstream". No facts are furnished
to support these
submissions. A further complaint by the applicants is:
"Brakfontein
Road was designed and constructed to convey residential .traffic and
was never intended for the residential traffic
to have to mingle on a
permanent basis with heavy duty articulated trucks entering and
leaving the first respondent's property"
This
has not been proved as-Brakfontein Road is situated in an Industrial
Zone and it is clear that the distribution centre was
approved before
the establishment of Midstream Estate, They contend that unlawful and
illegal businesses will come to the area
the serving truck drivers
who will be waiting to enter the first respondent's property. There
is no such evidence before court
to sustain these averments.
This
application is being dealt with when the construction of the new
access has been completed and the traffic signal at the interchange
with the new access and Brakfontein Road had been commissioned. The
system of one directional traffic flow has already been implemented
as can be seen from the attached photos.
The
Traffic Impact Study was approved oh 28 April 2009 and the site
Development Plan on 29 September 2009. A period of 17 months
has
lapsed since the approval of the Traffic Impact Study before the
present application was launched during October 2010. This
application was commenced 12 months after the approval of the SDP.
The delay in the bringing of this application has resulted in
the
first respondent investing more than R 345 million in costs
developing the access road and new warehouse. The first respondent
had at all times complied with the legitimate requests by the second
respondent when the relevant permissions were granted. The
second
respondent does not deny that permission for the revocation of the no
access line had been authorized, and states that it
was authorized
when approval for the FSR of 0.4 was granted.
Should
a temporary Interdict be granted the prejudice to the first
respondent includes that the first respondent will not be able
to
continue to rely on a cost effective logistical network to dominate
the retail market by supplying products on the shelves of
its'
outlets at the lowest possible costs. The first respondent will lose
the opportunity to fully exploit the development on its'
property as
granted by the second respondent
The
one directional flow system as designed by the first respondent will
be severely compromised should the court grant an interim
interdict.
The distribution centre would not be utilized as a distribution
centre, resulting in huge expenditure by the first respondent
to
obtain rental space in retail centres, pending the outcome of any of
the legal steps the applicants intend to take.
Supply
agreements between the first respondent and producers will be
compromised and they will not be able to deliver products and
produce
on a daily basis. The expenditure of R5 million on the new access by
the first respondent on the property will go to waste
should the
first respondent be interdicted from using the new access.
It
is clear that the prejudice the first respondent would suffer should
the court grant an interim interdict far outweighs the prejudice
to
be suffered by the applicants. The balance of convenience favours the
first respondent in all respects. The further requirement
that there
is no other satisfactory remedy cannot be sustained. The applicants
have already launched an appeal to the 1 Township
Board, but are
requesting the court to grant interim relief pending the outcome of
certain legal actions already instituted or
to be instituted.
If
regard is had to the court's findings regarding the absence of
irreparable harm to the applicants, this Court cannot find that
the
applicants have proved on a balance of probabilities that there is no
other satisfactory remedy. Furthermore the court finds
that after
weighing and considering the applicants' prospects of success in the
application for review, the absence of a prima
facie clear right the
availability of the appeal to the Township Board, the balance of
convenience not favouring the applicants
and the prejudice to the
respondents that the application for an interim interdict cannot
succeed.
Due
to the fact that the third respondent supported the applicants any
cost order against the applicants should also be. applicable
against
the third respondent.
I
make the following order:
1.The
application is dismissed with costs, including the cost of two
counsel;
2.
The third respondent is ordered to pay the costs jointly and
severally with the applicants the one to pay the other to be
absolved.
Judge
Pretorius
Case
number : 57688/2010
Heard
on : 10 March 2011
For
the Applicant : Adv Maritz SC
:
Adv van dec Merwe
instructed by : Tim du Toil & Co Inc
For
the First Respondent : Adv Grobler SC
:
Adv Liversage
Instructed by : Werksmans
For
the Second Respondent: Adv Voster
instructed by : Hugo &
Ngwenya
Date
of Judgment : 21 April-2011