Van Rensburg NO and Another v MEC for Housing, Local Government and Traditional Affairs, Eastern Cape province and Others (3399/2010, 3498/2010) [2012] ZAECPEHC 82 (23 November 2012)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 82
|

|

Van Rensburg NO and Another v MEC for Housing, Local Government and Traditional Affairs, Eastern Cape province and Others (3399/2010, 3498/2010) [2012] ZAECPEHC 82 (23 November 2012)

IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – PORT
ELIZABETH
Case No: 3399/2010
3498/2010
In the matter between
WILMA EMMERENTIA VAN RENSBURG
N.O.
....................
First
Applicant
PHILIPPUS STEPHANUS VAN RENSBURG
N.O.
............
Second
Applicant
and
MEC FOR HOUSING, LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS,
EASTERN CAPE PROVINCE
.........................................
First
Respondent
EQUUS TRAINING AND CONSULTING CC
................
Second
Respondent
NELSON MANDELA BAY
METROPOLITAN MUNICIPALITY
...............................
Third
Respondent
REGISTRAR OF DEEDS
.............................................
Fourth
Respondent
___________________________________________________________
JUDGMENT
REVELAS J
[1] This is an application for
review in terms of section 8 of the Promotion of Access to Justice
Act, No. 3 of 2000 PAJA. The applicants
seek to set aside a decision
of the first respondent (or ‘the MEC’), consenting to the
removal of four restrictive
conditions, or praedial servitudes. These
are contained in the deed of transfer (the title deed) pertaining to
a residential property,
Erf 102, Summerstrand Extention 1 (‘the
property’). The second respondent (Equus) is the owner of the
property and
was the applicant at whose behest the MEC consented to
the removal of the aforesaid four conditions. Equus brought its
application
in terms of section 2(1)(a) of the Removal of restriction
Act, 84 of 1967 (‘the Removal Act’) and it was its fourth

such application. The decision made in its favour and now sought to
be set aside, is dated 21 May 2010 and was published in Notice
No
185, Provincial Gazette No 2372. Apart from the substantive relief
sought in this application, the applicants also seek further
orders,
namely the substitution of the decision consenting to the removal of
the conditions by a decision that Equus’ application
for
removal of the restrictive conditions be refused. An order directing
the fourth respondent (the Registrar of Deeds) to give
effect to the
substantive relief by reinstating the restrictive conditions in the
title deed, is also sought. Only the MEC and
Equus (the first and
second respondents) oppose the application for review.
[2] The applicants bring this
application for review in their capacities as trustees of the Hobie
Trust (the trust) which owns erf
104, Summerstrand Extention 1, which
abuts the property in question to its west. The applicants have been
living there since 1994.
Equus acquired the property in September
2006 and ever since, the applicants and their neighbour have been
embattled in a legal
war over the use of property. The present
application will also not be the last application brought for
determination in this ongoing
dispute.
[3] The decision sought be reviewed
was taken in terms of section 2(1)(a) of the Removal Act which
provides for
inter alia,
the removal of restrictions in title
deeds in respect of land where the “
Administrator
”,
(now the first respondent or other responsible representative of the
government in the Eastern Cape Province) is satisfied
that it is
“
desirable to do so in the interest of the establishment, or
the development of any township or in the interest of any area,
whether
it is situate in an urban area or not, or in the public
interest; . . .
”
[4] The four restrictive conditions
under consideration were first set out and referred to as “special
conditions” pertaining
to the property in Deed of Transfer No
6315 of 1937. They read as follows:
“
C
. . .
(i)(a) That this erf be
used for residential purposes only.
(b) That only one house
designed for the use of one family, together with such outbuildings
which are ordinarily required to be
used therewith, be erected on
this erf.
(c) That no more than
half the area of this erf built upon.
(d) That no building or
structure or any portion thereof except boundary walls and fences
shall be erected nearer to the street
lines which form a boundary of
the erf, than the building line indicated on the diagram of this
erf”.
[5] It was common cause that the
street building line or setback referred to in condition C(i)(d), is
30 Cape feet in length which
is commonly accepted as equal to 9.45
metres. This latter restriction has, according to Equus, been ignored
or breached by several
owners in the area although the extent and to
which degree remains in dispute. This fourth restrictive condition
was, according
to the applicants, of assistance in preserving a view
of the sea.
[6] It was common cause between the
parties that the above restrictive conditions applied also to certain
other erven in Summerstrand
Extention 1, namely Erven 32 to 54, 58 to
68, 77 to 99 and 102 to 118. The applicants are also the trustees of
another trust which
owns Erf 85 in the same street, from where they
conduct a guesthouse.
[7] The relevant part of
Summerstrand Extention 1, consists of those erven situated between
Marine and Brighton Drives on the one
hand, and Fourth and Seventh
Avenues on the other.
Factual Background
[8] In September 2006, Mr CM Ellis,
on behalf of Equus, approached his neighbours, including the
applicants, to advise that he intended
to build a second dwelling on
the property. The applicants, together with some of the neighbours
(abutting land owners) lodged
written objections with the third
respondent (the municipality) against the construction of a second
dwelling on the property,
but received no response.
[9] Equus then purportedly abandoned
its plan to build a second (separate), dwelling on its property, and
during the first half
of November 2006, commenced with construction
operations to renovate and effect alterations to the main dwelling.
These alterations
included converting the single storey house on the
northern half of the property into a double storey house. This house
has eleven
bedrooms and eleven parking bays. The plans for these
alterations were approved by the municipality on 23 February2007.
[10] On 27 November 2006, in a
letter, the trust’s attorneys demanded that the building
operations on the property be ceased
as it transgressed the 9.45
meter street building line. The building operations were continued
with. On 5 December 2006 the trust
brought an urgent application for
an interdict against Equus to demolish all structures which
encroached the 9.45 meter street
building line on the property.
[11] The result of the application
was that the parties came to an agreement, which was made an order of
court by Nepgen J on 14
December 2006. In terms thereof Equus was to
cease all building operations which encroached the 9.45 meter street
building line
as set out in the title deed condition C(i)(d), pending
the finalisation of an application to be brought by Equus for the
removal
of conditions C(i)(a) and C(i)(d), which Equus was obliged to
bring within sixty days. The main application for final relief (a

demolition order) was postponed
sine die
.
[12] One month later, in January
2007, Equus applied to the municipality for permission to run a
guesthouse from the property. It
did so under the Port Elizabeth
Zoning Scheme. Equus also applied to the municipality under the
National Building Regulations and
Building Standards Act, No. 103 of
1977 (the Building Act) for the approval of its amended building
plans, which made provision
for eleven bedrooms in two main
structures, linked on the ground floor. The plans were approved on 23
February 2007. The special
consent to run a guest house on the
property was granted on 5 September 2007, but subject to certain
conditions. These were that
a maximum of six guest suites for
overnight guests were permitted and restrictive Condition C(i)(a) was
to be removed, before any
new land rights were to be exercised on the
property.
[13] On 23 February 2007 (the same
day on which the amended building plans were approved), Equus applied
to the provincial government
for the removal of condition C(i)(d)
(the restrictive condition pertaining to the street line) as well as
condition C(i)(a), (the
restrictive condition requiring that the
property be used for residential purposes only). This was its first
application for the
removal of restrictive title deed conditions.
There were twenty one objections to the application.
[14] A second application for review
was brought by the trust, this time to set aside the municipality’s
approval of the amended
building plans, and also to interdict Equus
from approving further plans in breach of the restrictive conditions
and to direct
Equus and the municipality to demolish the buildings,
or portions of those buildings on the property which were deemed in
conflict
with the restrictive conditions in its title deed. The
application was brought under case number 1440/2007.
[15] The review was premised on the
trust’s main objection to the proposed building plans, which
was that they conflicted
with the remaining title deed conditions and
the Municipality’s Zoning Regulations and section 7 of the
Building Act. Equus
argued that it was in the process of applying for
the removal of the relevant title deed conditions and that it would
be inappropriate
to anticipate the outcome of that application by
giving final relief as sought by the trust.
[16] Froneman J on 29 March 2008
found that the municipality’s approval of the building plans
was procedurally unfair insofar
as it did not allow for
representations made by those property owners in whose favour the
title deed constrictions operated, prior
to it making a decision on
the application for approval of the plans. The procedural unfairness
was also held to have stemmed from
an error in law on the part of the
municipality who considered that the question whether or not the
proposed building plans were
in conflict with the title deed
conditions, could be determined on the same grounds as determining
whether the building qualified
as a dwelling or not under the zoning
regulations. It was held that a different approach in respect of each
was required.
[17] The application for review
succeeded and the municipality was interdicted from approving any
further building plans. The determination
of the final (demolition)
relief stood over until the outcome of the restrictive title deed
conditions was made known to the parties.
[18] On 20 October 2009, under case
number 3649/2006 Froneman J ordered that all structures erected on
the property that encroach
over the building line adjacent to the
street frontage of the erf. An order was also made under case number
1440/2007 that Equus
and the municipality take all the necessary
steps to demolish the buildings which were erected on the property in
accordance with
the plans. Leave to appeal against these orders was
refused by the SCA on 24 June 2010.
[19] On 23 February 2008, Equus
applied for a second time to the provincial government for the
removal of restrictive conditions
C(i)(b) and C(i)(c) in the title
deed. These were respectively the condition permitting only one house
designed for one family
on the property, and the condition requiring
that no more than half of the property be built upon. There were
sixty eight objections
to this application.
[20] Some time during August 2008
Equus abandoned both its first and second applications and submitted
its third application for
the removal of the restrictive conditions
on 17 September 2008. But in the
interim
the MEC had approved
Equus’ first application on 4 April 2008.
[21] On 24 June 2008 the applicants
successfully instituted proceedings to review and set aside the MEC’s
aforesaid decision
dated 4 April 2008 in which the removal was
approved. On 13 November 2008, Jansen J set aside the MEC’s
decision and substituted
it with a decision in which Equus’
application of 23 February 2007 for the removal of clauses C(i)(a)
and (d) was refused.
The Registrar of Deeds (fourth respondent) was
ordered to reinstate the aforesaid conditions in the title deed.
Before the order
was made, the MEC withdrew its opposition to the
application on 5 November but did not consent to the order granted.
Equus contended
that because the merits were not considered, it was
entitled to bring another application for the removal of conditions
C(i)(a)
and (d), despite the order of Jansen J. I will return to this
aspect later herein.
[22] On 10 December 2008 Equus
lodged its fourth application to the first respondent for the removal
of all four restrictive conditions
of title applicable to the title
deed in question. The decision of the MEC to consent to the removal
is the subject-matter of the
present review application.
The Application brought by Equus
[23] The first submission advanced
by Equus in its application was that in bringing the application,
Equus was complying with the
court order of 14 December 2006. This is
incorrect. Nepgen J only set a time period within which Equus could
bring the application,
if it wanted to. If it did not exercise its
rights in this regard, it would not be in contempt of court, but the
applicants would
then be entitled to their demolition order.
[24] Equus’ other reasons were
the following:
24.1 The removal of the restrictive
conditions in the titled deed would facilitate its guesthouse
business which it was entitled
to conduct as it received the
municipal council’s consent thereto, as did several other
property owners in the area. Equus
asserted that many of these
guesthouse owners did not have the required consent. Equus elaborated
on this argument of the unlawful
use of property of others, by
stating that the “vast majority of erven” in the area
were in violation of condition
C(i)(d) which prohibits building over
the 9.45 metre street frontage line.
24.2 The removal of the restrictions
would not deprive any of the property owners of their rights, and the
guesthouse would not
impact negatively on the residential character
of the area. Mr Ellis, who drafted the application, added that the
structure which
presently stands on the property, enhanced the
appearance of the street due to its ‘aesthetic nature’
and thereby enhanced
the value of property in the street.
Accordingly, Equus argued, it facilitated future development for
other property owners.
24.3 It would be in the public
interest to remove the restrictive conditions because the “anomaly
between the Title Deeds
and the Zoning Scheme” could lead to
unnecessary claims against the municipality.
24.4 Equus alleged that there was
“overwhelming support from most homeowners” in the
immediate vicinity for the removal
of the restrictive condition an
also referred to a “township wide application” for the
removal of restrictive conditions
in the title deeds of all the erven
in the area to be brought by “the Council”. Such an
application would “
regularize the
de
facto
situation of the Port Elizabeth Zoning
Scheme regulating building activities and land use in Extention 1”.
The alternative, Equus asserted, would be to order “
the
mass demolition of all structures in violation of their title deeds
and order the cessation of all activities that are not for
pure
residential use.”
24.5 Equus argued that the
applicants themselves were in breach of condition C(i)(d) pertaining
to their (or the trust’s)
street frontage line. They own erf 85
in the same street, where they operate a guesthouse, allegedly in
violation of all four restrictive
conditions. This argument was also
repeated in the Equus’ answering affidavit and echoed in the
memorandum of the Manager:
Spatial Planning of the provincial
government, which was submitted to the MEC for consideration in his
decision under discussion.
The allegations were denied by the
applicants.
The Trust’s Opposition to
Equus’ Application
[25] There were six objectors to
Equus’ fourth application. The trust was the strongest
objector. I do not intend to deal
with each aspect in their letter
listing their objections, but there are several relevant points
raised therein, which are also
contained in the founding,
supplementary and replying affidavits filed by the applicants.
[26] The trust disputed Equus’
allegation that the vast majority of homeowners in the area were
acting in violation of their
building line restrictions and submitted
that even if “
almost every owner in the township has (sic)
taken the law into their own hands
” such unlawful conduct
should not constitute support for Equus’ application. The
applicants denied that they themselves
violated the conditions
question and stated that the Magruser Trust (of which they are also
the trustees) indeed operated a guesthouse
on erf 85, but did so with
the necessary consent.
[27] The applicants and the trust
disputed that the area had a “multi-use character” as
maintained by Equus, having
regard to its size and the use of the
other erven therein. According to them, the guesthouses in the area
all retained their residential
character in that generally, only a
one or two rooms are let. It was emphasized that the guesthouse built
by Equus, covers about
the entire area of the erf on which it stands,
has eleven rooms and eleven parking bays and there was no other
residential property
in the area which has been developed to this
extent for “multi-use purposes”.
[28] The applicants stated that they
were unaware of any so-called “township wide application”
and described Equus’
reference to the “mass demolition”
option as “dramatized” and not relevant to its
application.
[29] It was further denied that
there was any “overwhelming support” for the removal of
the conditions in question and
the trust highlighted that there was
strong opposition voiced by several landowners to the developments
effected by Equus.
[30] Under the heading “UNFAIR
ADMINISTRATIVE ACTION” the following submissions were made by
the trust:
If there was indeed a “township
wide” application in the pipeline, it should not be open to
Equus to bring its own individual
application. If Equus was permitted
to bring this fourth application – the previous three all came
to nought – a perception
of bias would be created, given the
history of the matter and the fact that all objections were simply
brushed aside.
[31] Under the heading “FAILURE
TO DISCLOSE TRUE MOTIVE” the applicants refer to annexure 3 of
Equus’ application
wherein it relies on the municipal Council’s
special consent to operate six guestrooms on the property. What is
not disclosed
therein, the applicants contend, is that Equus in
actual fact built a second dwelling on the property, covering “
just
about the entire area of the erf, for the purposes of conducting a
guesthouse establishment having
eleven
rooms or
more and
eleven
parking bays. This is not just
an ordinary guesthouse: it is a substantial business operation on a
residential property
”.
[32] It was pointed out, (correctly)
that the use of the property was in conflict with the judgment of
Froneman J, prohibiting the
building of such a large dwelling and
also contrary to the municipality’s “Guesthouse Policy”
which expressly
recognizes a legitimate concern that guesthouses in
the municipal area are becoming too large
“
in
ordinary residential neighbourhoods and contribute to the invasion of
privacy of neighbouring properties”.
[33] It was also submitted that
Equus’ application had no substantive merit because it had not
put forward any grounds justifying
why it would be desirable to
remove the restrictive conditions in the interest of the development
of the township, (i) the area,
or (ii) the public as contemplated in
section 2 of the Removal Act.
The
trust maintained that the only reason advanced by Equus which could
possibly justify the removal of the conditions, to be the
interests
of the area (as required by section 2 of the Removal Act), is Equus’
submission that its guesthouse would enhance
the appearance of the
street with its ‘aesthetic nature’. The applicants deny
this and say it actually spoils the appearance
of the street.
[34] The trust also dealt with the
fact that the restrictive title deed conditions are praedial
servitudes and submitted that their
removal would amount to a
deprivation of property rights as contemplated in section 25 of the
Constitution.
[35] Finally, the trust submitted
that the personal interests of an applicant such as Equus seeking
removal of title deed conditions
to run a large guesthouse (which
they maintain is the only interest persued by Equus) are irrelevant.
[36] The trust lodged its objection
to this fourth application to remove the restrictive conditions on 11
March 2009. Two months
later, on 27 May 2009, the applicants sent a
letter to the MEC enclosing a then recent decision of the Supreme
Court of Appeal
handed down the previous day which had a direct
bearing on the respondents’ contention that the restrictive
conditions of
title deed had been displaced by the Municipality’s
Township Zoning Regulations.
1
It was the judgment referred to as
the
Naidoo
judgment in these proceedings.
The Decision of the MEC
[37] The decision of the MEC was
informed by several internal memoranda sent to him by his officials.
The strongest views in favour
of the removal of the four conditions
in question were expressed by the Senior Manager: Spatial Planning
who, on 31 March 2010
signed a memorandum (eighteen pages long) in
support of the removal. The content of the aforesaid memorandum by
the spatial planning
manager was summed up by the
Superintendent-General: Local Government and Traditional Affairs in
his memorandum to the MEC as follows:
“
The
retention of conditions in the light of the various legislation and
policies that must be considered by the municipality and
the MEC, is
no longer desirable as it prejudices and prevents development in the
townships.
Conditions of title are no
longer required as town planning tools because they have been
replaced by formal and structural town
planning schemes and
policies; and
The removal of the conditions
will not adversely affect the character of the township”.
[38] In his memorandum, the spatial
planning manager disputed that Summerstrand Extention was a
low-density area, or rather, that
it should be permitted to remain
one. His memorandum is a vehement denunciation of title deed
conditions, or any entitlement by
home-owners in the area to live in
it a low-density suburb. The running theme in this memorandum (and
also the MEC’s reasoning)
is that restrictive title deed
conditions were obsolete by virtue of the existence of the Port
Elizabeth Zoning Scheme which supplanted
them.
[39] The spatial planning manager
asserted that Summerstrand Extention was a multi-use area wherein
private sector driven tourism
ought to be promoted as a development
tool to support the economic, social and environmental goals and
policies of the government.
In his plea for the increased
densification of the area, reference was made to global warming, and
climate change, the consequent
loss of agriculture land due to the
future formation of deserts, and the concomitant greater demand for
resources.
[40] One of the themes expounded
upon this memorandum was that “tourism must be private sector
driven”. In this regard
the spatial planning manager relied on
Chapter 1, section 3 of the Development Facilitation Act, 6 of 1995
(DFA) which describes
a number of developmental parameters which was
listed by him in his memorandum as being:
“
1.
Policy,
administrative practice and law should promote efficient and
integrated land development in that they should promote the

integration of the social, economic, institutional and physical
aspects of land development.
2.
Promote integrated land
development in rural and urban area in support of each other.
3.
Promote the availability of
residential and employment opportunities in close proximity to or
integrated with each other.
4.
Optimise the use of existing
resources including amongst others land, bulk infrastructure, roads,
transportation and social facilities.
5.
Promote a diverse combination
of land uses.
6.
Discourage the phenomenon of
urban sprawl in urban areas and contribute to the development of more
compact towns and cities.
7.
Contribute to the correction
of historically distorted spatial patterns of settlement in the
Republic and the optimum use of existing
infrastructure in excess of
current needs and,
8.
Encourage environmentally
sustainable land practices and processes”.
[41] Strong reliance was also placed
on the Land Use Planning Ordinance 15 of 1985 and other later,
legislation with their strong
emphasis on the socio-economic
development and the promotion of tourism. These were the National
Environmental Management Act 107
of 1998, the Local Government
Systems Act 32 of 2000 and the Land Use Planning Ordinance 15 of
1985, which were implemented to
interpret the meaning of the phrase
“the development of the township” as meaning the
socio-economic development of
urban area generally, rather than a
specific township.
[42] A small costing exercise also
performed to demonstrate that a guesthouse which houses ten visitors
a month, would benefit the
local economy with approximately
R1 440 000.00 per annum. The point was also made that not
far from Summerstrand Extention
1, where hotels, a casino, and
guesthouses were flourishing, the erven did not have restrictive
conditions in their title deeds.
The spatial planning manager viewed
this as discriminatory.
[43] There was even a challenge to
one of the objectors (obviously the first applicant) who “
also
runs a guesthouse in this extention and it is important to note that
there is no record of any application, concerning the
objector’s
properties, for the removal of exactly the same restrictive
conditions. This however has not stopped the objector
from expounding
the virtues of the need to retain these conditions, the same ones
that she is in violation of !
”
[44] Paragraphs 10 a-j of the
memorandum is an opinion on the “
Reasons why conditions of
title deed cannot be classified as servitudes
” and it is
set out over three pages. Noteably, this opinion (held out as
correct), was forwarded to the MEC notwithstanding
the judgment of
Froneman J handed down on 29 March 2011. In this judgment, the
restrictive title deed conditions were specifically
held to be
praedial servitudes.
[45] The following paragraphs cited
from the memorandum, were striking examples of the mindset of the
spatial planning manager:
45.1 “
In the overall
context, urban areas in South Africa are uneconomic in that for most
part due to low densities, single land use (reinforced
through title
conditions) and our reliance on cheap transport, our urban areas have
sprawled across the landscape”.
45.2 “
Municipalities are no
longer concerned with the provision of infrastructure, emergency
services, administration etc, they are also
mandated to be actively
involved in poverty alleviation, job creation in the form of local
economic development and so on”.
45.3 “
Title deeds, or
rather the conditions contained therein are controlling existing
resources and by their very nature are restrictive.
They bind,
amongst other things, land and the use thereof to a set of values
that persisted many years ago”.
[46] The following rhetorical
questions were posed by the spatial planning manager to make his
point, such as:
“
How
does a restrictive condition promote land use?” and also,
“
Promote
employment?”
“
Efficient
use of scarce resources?”
“
Tourism
plans for the municipality?”
And with regard to title deed
conditions’ the following was asked:
Does the condition by virtue of
its retention prejudice development?
Does the condition by virtue of
its retention prevent development?
Is it desirable to retain the
condition if it negatively affects other areas?
Is it desirable to retain the
condition if it negatively impacts on the public interest? What is
the character of an area? Who
determines it? One Resident?”
[47] The following statement in the
memorandum is also very significant:
“
In a
very short space of time, there was the need for huge stadiums, rapid
transport systems, new levels of security, facilities
to cater for
the anticipated demand and this includes accommodation.”
[48] The aforesaid is a clear
indication that the FIFA Soccer World Cup 2010, which was to be
hosted in June 2010, played a major
part in the reasoning of the
spatial planning manager. As one can recall, there was a clamour at
the time to provide accommodation
for the anticipated thousands of
spectators and visitors. Significantly, the event was over in the
next month and the urgent need
for accommodation was temporary and
that consideration was entirely irrelevant to Equus’
application.
[49] His apparent view that such
areas and their title deed conditions are the cause of the present
environmental, social and economic
ills (urban sprawl,
ever-increasing municipal rates and stunted economic growth) is
patently misconceived. The aforesaid reasoning
unfortunately found
its way into the reasons given by the MEC for granting Equus’
application as can be seen in the MEC’s
first reason for
approving the application set out below.
[50] The memorandum of the spatial
planning manager was described by the Manager: Land Use Management as
“
an indepth and extremely well-researched and
informative exposition of the various legislation and policy
documents that need to
be considered and the basis upon which an
application for the removal of restriction title deed condition needs
to be assessed.”
[51] It is therefore not surprising
that it was uncritically adopted by the officials in question. It is
important to note that
the Superintendent-General reported to the MEC
in his memorandum that the Municipality, on 11 November 2009,
recommended the removal
of conditions C(i)(a)(b) and (d), but not of
C(i)(c) (the condition which stipulates that no more than half of the
area of the
house be built upon) and commented thereon as follows:
“
With
regard to the municipality’s reluctance to recommend the
removal of condition C(i)(c), the Chief Town Planner also recommends

the removal of this condition as it is precisely the same as
contained in the Town Planning Scheme and need not be retained in
the
title deed and removing it now will mean that an application to do so
in the future won’t be necessary.”
[52] In his support for the removal
of the conditions, the Manager: Land Use Management also included the
motivation (if it can
be called that) for removing condition C(i)(c)
as set out above. The reasons for supporting the removal are the same
reasons as
contained in the Superintendent’s memorandum which
was adopted by the MEC.
[53] The Superintendent reported to
the MEC that the Planning Advisory Board recommended that the
application be approved for the
following reasons:
“
Before
approving the removal of a restrictive title condition, the MEC must
be satisfied that doing so will be in the interest
of the
establishment or development of any township or in the interest of
any area or in the public interest and, in the present
case, the
restriction must be one binding on the owner of the land by virtue
of a restrictive condition or servitude registered
against the title
deed and which relates to the subdivision of the land or the purpose
for which the land may be used or the
requirements to be complied
with or observed in connection with the erection of buildings or the
use of the land. The conditions
in question restrict the owner’s
use of the property and the removal will be in the interest of the
development of the
township in that it will enable that part of the
township to be efficient and integrated, it will enable the maximum
use of available
resources and will promote the development of
residential and work opportunities near to each other and the
integration of different
land uses;
The municipality has supported
the removal of the restrictive conditions and the zoning scheme
adequately covers land use managements;
and
The title deed conditions in
question are obsolete and are no longer required for land use
management purposes.
[54] On 14 April 2010 the
chairperson of the Planning Advisory Board recommended the approval
of the removal of the title deed conditions
in question and enclosed
a memorandum of the Manager: Land Use Management and Administration.
[55] On 5 October 2010 the Senior
Manager Land Use Management and Administration furnished the
applicant’s attorneys of record
(at their request) with the
MEC’s reasons, for approving the renewal of the restrictions
over Erf 102, Summerstrand. These
were:
(1) The removal of the restrictive
conditions will be in the interest of the township in that it will
enable the township to be
efficient and integrated, it will enable
the maximum use of available resources and will promote the
development of residential
and work opportunities near to each other
and the integration of different land uses.
(2) The municipality has supported
the removal of the restrictive conditions and;
(3) The title deed conditions are
obsolete and no longer required for land use management purposes
since the zoning scheme adequately
covers land use management.
[56] After the institution of the
present review proceedings, the MEC delivered “Further Reasons”
together with the
record filed in terms of Rule 53 of the Uniform
Rules of Court.
[57] These further reasons for the
decision taken by the MEC were summed up by counsel for the
applicants as follows:
1. The restrictive conditions of
title were inserted for the purposes of town planning and land use
management at a time when there
were no zoning scheme regulations.
There are now zoning scheme regulations which adequately and
appropriately cater for town planning
and land use management and the
interests of the public. The presence and enforceability of an
appropriate town planning scheme
is thus a relevant consideration in
considering whether, in the public interest, it is necessary to
retain the restrictive conditions.
2. The zoning scheme regulations
adequately and appropriately cater for the preservation of the
essential characteristics of Summerstrand.
It is thus no longer
necessary to retain the restrictive conditions.
3. The restrictive conditions do not
adequately and appropriately cater for town planning and land use
management because they are
inflexible (their amendment and removal
is cumbersome, costly and time-consuming); their inflexibility often
restricts and hampers
the appropriate economic and social development
of an area the essential characteristics of which have not remained
static; and
they are a relic of the past (they do not adequately
taken into consideration the objects of local government as enshrined
in section
152 of the Constitutional of the Republic of South Africa,
1996 (“the Constitution”)).
4. Over the four years preceding,
May 2010, thirteen applications for the removal of identical
restrictive conditions had been approved.
5. Although the removal of the
restrictive conditions from the title deed of Erf 102 may impact
negatively on the property rights
of the Hobie Trust (i.e. its use
and enjoyment of Erf 104), the broader interests of the public and of
the Summerstand area generally
rendered it desirable to remove the
restrictive conditions.
[6] The decision to remove the
restrictive conditions from the title deed of Erf 102 was taken a few
days prior to the
Naidoo
judgment.
Grounds For Review
[58] The grounds upon which the
applicants bring the application are set out in their founding
affidavit deposed to by the first
applicant. The applicants
contended,
inter alia
that the decision is:
58.1 Unconstitutional in that it
amounts to an abrogation of the real and registered servitude rights
enjoyed by the trust and others
over erf 102.
58.2 Unlawful for not being made
within the terms of the provisions and procedures, or in accordance
with the MEC’s powers
contained in section 2 and 3 of the
Removal Act.
58.3 Constitutes “administrative
action” as defined in PAJA, and therefore it falls to be
reviewed and set aside on
the grounds of unlawfulness and being
unconstitutional in that the decision was taken without proper
consideration of the objections
to the application lodged by the
trust.
58.4 Reviewable, also because the
reasons advanced by the MEC for his decision reveal that he
considered irrelevant and unintelligible
factors and incorrectly
considered the restrictive conditions to be “obsolete”
and that they were supplanted by the
third respondent’s zoning
scheme regulations. The applicants relied on the fact that the
Supreme Court of Appeal held that
the aforesaid stance was
unacceptable and invalid on more than one occasion.
58.5 Arbitrary, because the trust
and other erf owners in Summerstrand Extention had registered real
rights, which they were deprived
of by virtue of the MEC’s
decision, and therefore it offends section 25(1) of the Constitution.
58.6 So unreasonable that the MEC
could not properly, or at all, have applied his mind to the decision.
He allowed irrelevant and
erroneous considerations to influence his
decision, or he failed to properly consider the material placed
before him, particularly
by the objectors to Equus’
application.
58.7 Unjustifiable in relation to
the reasons given for it by the MEC. It is not compatible with a
rational evaluation of the evidence
placed before the MEC. The
reasons for the decision are also incomprehensible and not in
accordance with the considerations that
the MEC was required to
consider in terms of section 2 of the Removal Act.
[59] The applicants submitted that
the decision under scrutiny was clearly not in the interests of the
landowners of Summerstrand
or its development. It only served the
needs of Equus at the exclusion of others.
[60] The applicants in addition,
contended that the MEC was
functus
officio
when
he made the decision, as far as clauses C(i)(a) and (d) are
concerned. The MEC had given the go-ahead for the removal of the

aforesaid clauses and his decision was set aside by a judge of this
Court who substituted that decision with one refusing the removal.
Discussion
[61] In his categorization of title
deed conditions as an amorphous group of regulations which are
obsolete, the MEC committed a
fundamental and reviewable error, by
considering that they were supplanted by the Port Elizabeth Zoning
Scheme which “adequately
covers land use management”. A
zoning scheme as a matter of law does not override title deed
restrictions
2
.
[62] In
Camps
Bay Ratepayers and Residents Association and Others v Minister of
Planning, Culture and Administration Western Cape, and Others
Griesel
J had the following to say about branding title deed conditions as
relics ‘of the past’ and abolishing them
in favour of the
applicable zoning scheme:
‘
However,
this is not the philosophy of the [Removal] Act and it was
inappropriate and irregular for the Minister to have allowed
himself
to be swayed by this consideration. In my view the Minsters’
approach in this regard is fundamentally unsound
3
’
.
[63] The MEC argued that the
Camps
Bay Ratepayers
case is
distinguishable from the present matter. I disagree. It was also
argued that the title deed conditions relied upon were
‘at
odds’ with the zoning scheme in that case.
[64] In the
Camps
Bay
matter the Minister
also relied on reports denouncing title deed conditions, which
informed his reasoning as in the present case.
The remarks of Griesel
J therefore find equal application here. The learned judge reasoned
that if it were in the interest of the
public or the interest of all
properties to be subject to zoning restrictions, the legislature
would have abolished all restrictive
conditions by Statute. Instead,
it has laid down a procedure, in the Removal Act, whereby such
conditions can be removed if it
were in the public interest to do
so
4
.
[65] Froneman J, in his judgment of
29 March 2008 specifically referred to section 1.6.5 of the Port
Elizabeth Town Planning Scheme
(i.e. the applicable zoning scheme
regulations) which states:
“
Nothing
in these regulations shall be construed as permitting any person to
anything which is in conflict with the conditions registered
against
the title deed of land”.
[66] It appears that the MEC either
ignored the aforesaid provisions of the zoning scheme protecting
title deed conditions and the
judgment of Froneman J. Section 6(2)(d)
of PAJA entitles a Court to review administrative action if it was
materially influenced
by an error of law. Where the error is
deliberately made, a Court is all the more entitled to interfere with
that decision.
[67] It was argued on behalf of the
MEC that the MEC did not simply adopt the approach that the zoning
scheme trumped the restrictive
conditions of title, but considered
whether in the interests of residents including the applicants, were
adequately protected.
In this regard the MEC considered that the
zoning scheme regulations are adequately and appropriately catered
for town planning,
land use management and in the interest of the
public and pertaining to an area which has changed much over the last
eighty years.
Much was made of the fact that the restrictive
conditions were first introduced in the 1930’s.
[68] Counsel for the MEC relied on
the decision in
Hira and
Another v Booysen
5
insofar as it was held therein that
if a tribunal incorrectly interprets a statutory criterion whether or
not the decision taken
will be rendered invalid, depends upon its
materiality and as a consequence, if the facts found by the tribunal
are such as to
justify its decision, even on the correct
interpretation, then, (in the absence of another ground of review)
there would be no
basis for interference. The adequacy of the zoning
scheme is, it was submitted, only one of the grounds upon which the
MEC relied
in reaching his decision.
[69] The applicants’ counsel
also relied on the judgment in
Hira
6
,
where it was held that if the tribunal applied the correct criterion,
but there are no facts upon which the decision can be reasonably

justified the decision can be set aside on review.
[70] In my view, it was incumbent
upon the MEC to recognize that restrictive conditions and zoning
scheme regulations serve different
purposes. The first is aimed at
the preservation of specific ownership rights, and the second is the
general regulation of general
town planning standards.
[71] What seems to have been
disregarded in this matter, or lost sight of, is the fact that Equus’
applications (all four
of them) were brought under the Removal Act
and the MEC was required to make his decision in terms of section
2(1)(a) of the Removal
Act. The MEC had to be satisfied that it was
“desirable” to remove the conditions in question (1) in
the interest of
the establishment or development of any township; (2)
the interest of any area; or (3) in the public interest.
[72] In the
Camps Bay Ratepayers
case Griesel J had the following to say on what is intended in
the aforesaid section:
Unless the Minister is
as a fact satisfied as to the presence of one or more of these
circumstances, a jurisdictional fact for the
exercise of his power to
remove conditions is absent. And if he is subjectively satisfied,
this view is one which is susceptible
to review if his conclusion
was, objectively speaking, unreasonable . . 1. The personal interest
of the applicant for removal is
irrelevant. The interest which must
be served by the removal are the broader interests of the township,
area or public. 2. The
fact that the removal may not be undesirable
does not in logic mean that such a removal is as a fact desirable.
The test laid down
by section 2(1) is a positive one, not a negative
one. In other words, the test is the presence of a positive advantage
which will
be served by granting the application not the absence of a
negative advantage”.
7
[73] The zoning scheme regulations
do not adequately cover the preservation of essential characteristics
of Summerstrand Extention
1. Even though there are several
guesthouses in the area, the township retained its residential
character irrespective of the assertions
to the contrary. It does not
have a tourist or entertainment zone character such as the areas
where the hotels, casino and restaurants
are situated. The zoning
scheme regulations on the other hand, are applicable to a much larger
portion of the Nelson Mandela Bay
area. These regulations are
uniformly applied except insofar as they conflict with title deed
conditions.
[74] The applicants also make the
important point that with regard to zoning scheme restrictions, the
owners in the area or township
are at the mercy of special consents
which the municipality may or may not grant, whereas if they
themselves wished to enforce
the title deed restrictions, there can
be no derogation from the conditions.
[75] The purpose of the insertion of
the restrictive conditions into the title deed, was never considered
by the MEC. It could be
for no other reason than to preserve the
amenities of the erven in Summerstrand Extention 1 as low-density,
single residential
properties with sea views and to maintain their
single residential sea-side suburbs character of the area.
[76] There is no indication that the
MEC ever knew the true nature of the use of the property. The spatial
planning manager for
instance accepted that Equus was running a
lawful guesthouse with the approval of the municipality. This is
apparent from his memorandum
dated 31 March 2010. This contradicts
the earlier findings of Froneman J in his judgment of 29 March 2009
wherein it was held that
the continued construction of the guesthouse
would be unlawful.
[77] The MEC’s initial reasons
furnished are, as can be seen from the factual background set out
above, copied from the reasons
of the Planning Advisory Board, who in
turn relied on the spatial planning manager’s memorandum, which
he praised. The aims
put forward in the spatial planning manager’s
memorandum may be laudable, as they are clearly aimed at
socio-economic development
in the broad sense. However, the
legislation relied on therein, is not applicable to the situation
under consideration. Equus can
hardly be viewed as a candidate for
receipt of the intended benefits of a socio-economic nature. It has
put forward nothing in
its application to the MEC that has anything
remotely to do with the aims of socio-economic development. The MEC’s
decision
promotes the financial interests of an individual applicant
(Equus) who has not demonstrated that it would further any of the
socio-economic
aims set out in the legislation relied upon, and that
is simply irrational.
[78] The spatial planning manager in
effect pronounced that upmarket areas such as the one under
consideration have no right to
exist. This view is misguided while
property may still be privately owned, which right is protected by
the Constitution.
[79] The MEC stated in his answering
affidavit that Equus’ guesthouse “will create job
opportunities and will generate
revenue for the Eastern Cape
Province”. Equus never mentioned these considerations in its
“Reasons” for bringing
the application for the removal of
the restrictive conditions, neither were they part of the MEC’s
initial reasons given
for his decision. This is an afterthought even
if it was given at the appropriate time as an actual reason for the
decision. Insofar
as it echoes the reasoning of the spatial planning
manager, it is not a basis for infringing upon the preservation of
rights of
the erven in the area under consideration.
[80] It was submitted on behalf of
the MEC that he considered that “public interest” should
include socio-economic factors
and so took into account the revenue
and job creation potential of Equus’ guesthouse activities. The
latter consideration
was mentioned several times in the MEC’s
submissions. He also considered that the character of the area has
changed and is
no longer a low-density area, and also that identical
restrictive conditions have been removed from the title deeds of
other properties.
In addition to these circumstances the MEC
maintains that he remains of the view that the relevant Zoning Scheme
provisions can
adequately protect the character of the area.
[81] Thus, it was argued, the MEC
exercised his discretion in a judicial manner and fully considered
the merits of Equus’
application. As a consequence, it was
submitted that the MEC’s decision was not an arbitrary
deprivation of property either.
The MEC urged that his decision must
be regarded in the light of his reasons as a whole.
[82] The fact that Equus did not in
its application, allude to the job creation potential of its
guesthouse, was a clear indication
that he brought an independant
mind to bear on Equus’ application, the MEC argued. This would
only be a proper inference
if the MEC had sufficient independant
information in this regard. There is no suggestion that he did. His
views in relation to
job creation are based on the spatial planning
manager’s memorandum and the spatial planning manager clearly
did not apply
his mind to this particular guesthouse, its size and
the history preceding its existence, but dealt with the desirability
of guesthouses
in general and before the advent of the Soccer World
Cup.
[83] Another error of law made by
the MEC (probably also in reliance on the legal opinion of the
spatial planning manager), was
with regard to the meaning and effect
of restrictive title deed conditions. According to the MEC, the
restrictive title deed conditions
are personal servitudes in favour
of the municipality (the servitude holder). The erf owners merely own
servient tenements and
there are no praedial servitudes between the
relevant erven
inter se
in the townships. The law as it
presently stands does not support the reasoning of the spatial
planning manager as adopted by the
MEC.
[84] In his judgment of 29 March
2008 (under case number 1440/07), Froneman J held the following in
paragraph 21:
“
The
title deed conditions are registered not only against the
neighbouring property title, but also against the title deeds of a

number of properties in the Summerstrand area. There is no dispute
between the parties about their legal nature. They are praedial

servitudes that enure for the benefit of all other erven in the
designated area. Each erf is simultaneously both a servient tenement

and a dominant tenement. It is servient in the sense of being
encumbered by the title deed condition in favour of all the other

similar erven, and dominant in the sense of being favoured by the
title deed condition in respect of the other similar erven
8
.”
[85] The aforesaid view as to the
nature of restrictive conditions was also confirmed by the Supreme of
Appeal in the
Naidoo
matter
9
.
The MEC’s view to the contrary, as expressed in his answering
affidavit, is a reviewable error of law. The question of praedial

servitudes leads to another of the applicants’ grounds for
review.
[86] Section 25(1) of the
Constitution provides:
“
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of

property”.
[87] The meaning of ‘arbitrary’
deprivation of property was determined by the Constitutional Court
and held to be when
there is insufficient reason for the deprivation
or it is procedurally unfair.
10
In
Ex
Parte
Optimal Property
Solutions CC
11
it was held that ‘property’
as meant in section 25(1) of the constitution includes any right to,
or in property, including
registered praedial servitudal rights. The
total removal of such rights for insufficient reason is therefore
equal to the arbitrary
removal of such rights. Counsel for the
applicants, is with respect, correct in submitting that the MEC’s
decision resulted
in a total deprivation of property and “
the
extinction of the registered praedial servitudal rights, of the
dominant tenements”.
[88] The reasons given by the MEC
for the removal of the conditions in question are hardly sufficient
in my view, as illustrated
above, and therefore their removal
constitutes an arbitrary deprivation of the registered praedial
servitudal (property) rights
of the dominant tenements.
[89] The MEC’s decision
therefore also falls foul of section 6(2)(h) of PAJA, which provides
that if administrative action
is so unreasonable that no reasonable
person could have so exercised the power, or performed the function
in question, a Court
may set it aside.
[90] The decision of the MEC
constituted administrative action. The right to fair administrative
action is protected by the Constitution
(section 33(1) and (2) of the
Bill of Rights and also item 23(6) in Schedule 6 to the
Constitution). Administrative Action must
be procedurally fair,
lawful, reasonable and justifiable in relation to the reasons given
for it. The Courts have a duty to determine
whether the outcome was
rationally justifiable. In
Carephone
(Pty) Ltd v Marcus NO and Others
12
it was
held
that the aforesaid provisions
“
introduced
a requirement of rationality on the
merits
or outcome
of
the administrative decision, which goes beyond procedural
impropriety, or irrationality only as evidence of procedural
impropriety”.
[91] Decision makers must also apply
their minds to all the relevant and material information placed
before them, evaluate it properly
and accord it such weight as the
degree of its importance requires
13
.
In terms of section 6(2)(e)(iii) of PAJA a court has the power to
review administrative action taken where relevant considerations
were
not considered and irrelevant ones taken into account.
[92] The MEC made assertions which
are factually incorrect or unsupported by any evidence, such as that
judicial notice could be
taken “
that
the Summerstrand Area has since become studded with businesses,
hotels, guesthouses, and blocks of flats, the Boardwalk Casino,

restaurants and shopping centres. In fact, opposite and just across
from the Applicant’s house is the Marine Hotel”.
Reference is also made to
the Raddison Blu Hotel which was recently built. The facts were used
in support of the MEC’s denial
that Summerstand Extention 1 is
a low-density area.
[93] The erven in the area under
consideration are single residential properties in a low density area
with a residential character.
It is of no assistance to the first two
respondents to rely on the fact that neighbouring areas have hotels
and casino’s.
The Raddison Blu Hotel falls outside the area
under consideration and the other hotel mentioned has been there for
a very long
time. These neighbouring areas have no title deed
restrictions and are tourism and entertainment orientated. Mr Ellis
should rather
have chosen a property for Equus to operate a large
guesthouse in one of those areas.
[94] Guesthouses in the area
generally, have maintained their residential character and are not
remotely run as businesses of the
magnitude contemplated by Equus, as
the trust pointed out in its letter of objection to Equus
application.
[95] The MEC ought to have
considered the ninety-four objections to Equus’ application
more closely, or at least some of them.
The point was made that there
were only six objectors which was apparently viewed as, an
insignificant number. If regard is had
to the fact that Equus was
permitted to bring four applications for the removal of the
restrictive title deed conditions, and that
there were many
objections from the start, that statement is factually incorrect. In
total, there were 94 objections since Equus
commenced its
applications for removal of title deed conditions. These objections
formed part of the record and many legitimate
concerns were raised
therein. The objections were substantial and many sound reasons why
the application ought not to have been
granted, were advanced in
them. Very important aspects were put forward for consideration in
them. Their contents put paid to Equus’
assertion that there
was overwhelming support for the removal of the restrictions. It
appears that the applicants justifiably complained
that these
objections were “simply brushed aside”. There was also no
basis to accept that there was ‘overwhelming
support’ for
Equus’ application. The contrary seemed to be true.
[96] Equus maintained that no
landowners in the area are, as of right, entitled to a sea view.
However, the preservation of a sea
view of the erven between Seventh
and Fourth Avenues must be one of the purposes of the condition that
maintains the street frontage
building line at 30 Cape Feet. This
condition clearly maintains wide avenues which gives the area
expansive unhindered views of
the sea. The reasoning of Equus and the
MEC, taken to its logical conclusion, envisages that only the
landowners who have the largest
and highest dwellings will have a sea
view. The photographs of the house built by Equus reveals a
disproportionately large structure,
covering almost the entire area
on which it is built which will ensure it a seaview. This seems to be
a form of urban bullying,
in my view. The MEC’s officials or
the MEC himself ought to have read, and not ignored the judgments
handed down in this
ongoing dispute. In paragraph [26] of the
judgment of Froneman J in case number 1440/07 (of 29 March 2008), the
learned judge summed
up the position as follows:
“
Counsel
for the municipality argued that it would be unreasonable for the
municipality to have to ascertain in each case whether
a proposed
building is intended for use by a single family or not . . . a little
bit of common sense would also help. In the present
matter the
municipality knew that the neighbour [Equus] first sought to have
plans for two buildings approved, then adapted those
plans to conform
technically with zoning regulation use. The municipality knew that,
less than a week before approval of the amended
plans, the neighbour
also applied for the eleven bedroom new building to be used as a
guesthouse. The neighbour has also alleged
that it has applied for
the restrictive title deed condition to be removed in terms of the
Removal of Restrictions Act. Not much
imagination is needed to deduce
what the primary intended use of the house is, nor does the extent of
the building – eleven
rooms – immediately suggest use by
only one single family”.
[97] By not considering relevant
considerations and by taking into consideration irrelevant
considerations, the MEC’s decision
is clearly open to judicial
review.
[98] Another important factor in
this case is that the municipality was initially reluctant to
recommend the removal of condition
C(i)(c) (that no more than half of
this erf be built upon). This is very significant. Instead of
brushing this consideration aside,
the MEC or its officials should
have paid closer attention to the reason for this condition. If every
landowner in the area were
permitted to build on virtually the whole
of its (or his or her) walled-in erf, as Equus has done, the
consequences could be disastrous.
For example, the ever-increasing
floods in Port Elizabeth serves as a reminder of the serious drainage
problems in built-up areas.
A substantial increase in buildings and
dwellings on each property would present a greater demand for
municipal water and electricity
and the existing resources and
systems for the area might not be able to sustain a continuous
increase in supply.
[99] Equus’ excuse for
building in contravention of the restrictive conditions, is that Mr
Ellis did not know about the restrictive
conditions at first. Also,
Equus withdrew its first, second and third applications, to deal with
all four conditions in one application.
None of the aforesaid
considerations are excuses for what is the present,
de
facto
situation. Equus
has built the biggest structure it possibly could on its property to
operate the largest guesthouse in the area,
and it is all completely
unlawful. The MEC should have stood critical to the aforesaid
situation but instead espoused the cause
of Equus to a disquieting
degree.
[100] In my view, the MEC did not
properly apply his mind to the issues before him and reached a
conclusion which is not rationally
connected to the facts before him.
The MEC also did not apply the correct legal principles pronounced
upon in judgments which have
a direct bearing on the decision he was
called upon to make. In doing so he made errors in law, which
rendered his decision reviewable
and it falls to be set aside.
Clearly, this is a matter where justice demands that the MEC’s
decision must be substituted
with one refusing Equus’
application.
Was the
functus
officio
when
taking his decision?
[101] The applicants contended that
when the MEC exercised his powers in terms of section 2 and 3 of the
Removal Act, he was
functus
officio
in respect of
conditions C(i)(a) and (d) by virtue of the order of Jansen J on 13
November 2008. Equus disputed this assertion on
the basis that Jansen
J never dealt with the merits of the application.
[102] Counsel for the applicants
firstly relied on section 10(1) of the Interpretation Act 33 of 1957
which provides that “[
w
]
hen
a law confers a power or a duty then, unless the contrary intention
appears, the power may be exercised and the duty shall be
performed
from time to time as the occasion requires
”
.
One of the limitations to the administrative power of a public
official to rescind or vary their decisions or part of them, is
when
they are
functus officio.
It means that once a
public official exercising a discretionary power has taken a decision
affecting the rights and interests of
individuals, he may not reverse
or alter his decision except in exceptional circumstances. The
principle is firmly entrenched in
our law.
14
Where the rights and interests of
other parties are at stake, as opposed to where only one person’s
interests are affected,
the public authority is regarded a
functus
officio
after making a
decision unfavourable to the party seeking him to revisit it.
15
The author Baxter
16
also makes the point that there is
little case law on the subject, but what there is, favour the
functus
officio
principle.
[103] The MEC argued that the
municipality erred in publishing the incorrect address for erf 102 in
the advertisement of Equus’
application and therefore the MEC’s
decision was set aside on the basis of a procedural flaw, and not its
merits. It was
submitted that when the application was properly
advertised and no longer subject to the same procedural flaw that
bedevilled Equus’
first application. The circumstances had
therefore sufficiently changed to justify a reconsideration of the
matter and the principle
of
functus
officio
finds no
application.
[104] The
functus
officio
principle usually
arises where the decision of the administrator sought to be revisited
has been an unfavourable one. The MEC never
displayed any intention
of making any decision adverse to Equus. The facts in this matter
have clearly demonstrated that much.
A Court has however substituted
the MEC’s decision with one unfavourable to Equus. Jansen J did
not simply issue the order
in question because some of the
respondents were in default. Before him was a review application and
he was obliged to grant proper
(just and equitable) relief as
required by section 8 of PAJA. In exercising that power, Jansen J
substituted the MEC’s decision
for one which refused Equus’
application. Equus’ fourth application was brought only one
month after the Order of Jansen
J on 13 November 2008. No changed
circumstances were alleged to have occurred in this period which
could justify revisiting an
unfavourable decision.
[105] The aforesaid order of Jansen
J was never challenged and remains extant and final. This is all the
more reason why the MEC
was not entitled to revisit the application
for removal in respect of conditions C(i)(a) and (d). Regrettably
this is not the first
example of the MEC disregarding Court orders
and its support of Equus’ unlawful course of conduct embarked
on since 2006.
[106] It was submitted on behalf of
the MEC, that the ability of an administrator to revisit a previous
decision is to be exercised
when it is in the public interest. In my
view, this principle is not applicable to the present matter where
Equus’ application
is not for the benefit of the public
interest, but for its own benefit. Not even Equus advanced this
argument in support of its
fourth application to the MEC. According
to Equus, it had previously applied for the removal of two of the
restrictive conditions,
C(i)(b) and C(i)(c), but withdrew its
application in order to apply in one application for removal of all
the restrictions. In
support of this fourth application to the
provincial government for removal of the restrictive conditions in
the title deed, Equus
advanced several ‘reasons’ or
submissions which require mentioning.
[107] Section 165(4) and (5) of the
Constitution obliges the MEC to respect and accept orders of this
Court. By granting Equus’
application despite the court order
in question, the MEC has in effect ignored the Court’s order,
as he has also ignored
the rights created by the restrictive
conditions of title by consenting to their removal as a matter of
course, whenever zoning
scheme regulations are applicable.
The Counter-Application by Equus
and the Contempt Application
[108] The municipality, or third
respondent brought an application for an order to be made, in the
event that an order is granted
directing the third respondent to
demolish the buildings referred to in paragraph 2.1 of Froneman J’s
order of 20 October
2009 under case number 2007. The order sought is
to the effect that Equus Training and Consulting CC and Mr Ellis,
respectively
the first and second respondents in the
counter-application under case number 3498/2010, should be ordered to
pay the costs of
demolition, in the event that the third respondent
is ordered to demolish the same, jointly and severally the one paying
the other
to be absolved. An order to the effect that the first and
second respondents pay the costs of the counter-application is also
sought.
[109] The applicants in the review
application (Case No. 3399/2010) applied that the application be set
aside as an irregular step
in terms of the Uniform Rule 30, since the
municipality is not an applicant in the matter. I am disinclined make
the order sought
by the municipality, as it is inappropriate in these
proceedings (which the third respondent did not oppose), to order
Equus and
Mr Ellis to pay the municipality’s demolition costs.
That is a matter to be decided in different proceedings. I might just

mention that if the municipality’s officials had applied their
minds to this matter and ensured that the applicable court
orders
were obeyed, the present situation could have been averted. The third
respondent’s application is therefore set aside
as irregular
and it is ordered to pay the applicants costs of the application,
which does not include the costs of two counsel.
[110] The applicants sought further
orders to give effect to the demolition orders of Froneman J. At the
hearing of this review
application Equus brought a
counter-application in terms of Uniform Rule 45A for an order
suspending the execution of the demolition
orders, pending the
outcome of the present review application, as well as an application
dated 1 February 2010, to the provincial
government (the MEC) by the
municipality in terms of the Removal Act, for a general removal of
the restrictive conditions in the
title deed applicable to properties
in the Summerstand area.
[111] Because of their
non-compliance with the abovementioned two demolition orders of
Froneman J, Mr Ellis (the representative
of Equus) has been cited in
contempt proceedings as Equus’ representative and in his own
right (as an accessory to the contempt
of court by Equus) in terms of
section 332(2)
of the
Criminal Procedure Act 51 of 1977
under case
number 3498/2010.
[112] On 16 July 2010, Equus
re-submitted a building plan to the municipality for re-consideration
under the National Building Regulations
and Building Standards Act
103 of 1977 for a building on the property. The applicants maintain
that this act by Equus is conclusive
proof thereof that Mr Ellis and
Equus have no intention of complying with the demolition orders, but
submitted that the question
of wilfulness should be referred to oral
evidence with a directive that Mr Ellis must testify and be
cross-examined. Draft orders
which incorporated such orders were
handed in at the conclusion of argument on the review application.
[113] The applicants contend that
the municipality is also in contempt of the demolition order
pertaining to it, despite its notice
of intention to abide the order.
[114] Equus and Mr Ellis oppose the
application to have them placed in contempt of court.
[115] Mr Ellis and Equus contend
that they are not in contempt of the demolition orders because they
acted on the legal advice from
their lawyers to the effect that: (1)
The MEC’s decision (presently under review) to remove the
restrictive title deed conditions
meant that the
causa
for the
demolition orders had fallen away; (2) The aforesaid decision made it
possible to seek an order to suspend the execution
of the demolition
order pending finalisation of the review.
[116] An application was brought by
Equus to that effect and was to be considered along with this
application for review. By agreement
the contempt application is to
be postponed and heard as soon after judgment in the present matter
was handed down.
[117] In considering the application
to suspend the demolition order, the following is significant: When
the application for demolition
was argued before Froneman J (the
application which resulted in the demolition orders of 20 October
2009), Equus applied for a
postponement pending the outcome of the
fourth application. The application was dismissed and the following
was said:
“
The
first respondent has consistently, over an extended period of time,
sought to advance its own interest in operating a guesthouse
without
any proper regard to the fact that it was doing so unlawfully until
it had successfully applied for the restrictive title
conditions
(
Enslin
v Vereeniging Town Council
1976(3)
SA 443 (T)). In my judgment it would undermine the Court’s
role, as ‘enforcer of the law’ (see:
United
Technical Equipment
above,
at 347 G-H), if someone could use its extended unlawful course of
conduct and the consequences thereof, such as the construction
and
cost of completed work, as a reason why the law should not take its
ordinary course (cf.
Enslin
,
above, at 452 H). This goes for the demolition part of the order as
well, as I will presently indicate in relation to the other

application”.
[118] In the
Naidoo
matter
Froneman J as the court
a quo
, also refused a postponement in
similar circumstances. This is what the Supreme Court of Appeal had
to say about the matter at
paragraphs [46], [52], and [54] of that
judgment:
“
[46]
It is not surprising that Froneman J was unwilling to grant the Shan
Trust the postponement sought.
He
had rightly concluded in the main application, that the Shan Trust
had lagged behind the law once too often, and that enough
was enough!
Thus,
Froneman J’s, orders were intended to have immediate effect.
The 60-day period within which the demolition order was
to be
effected was stipulated for practical purposes, namely to enable the
owners and demolishers to do the necessary within a
time frame.
There
can be no doubt that he intended that immediate steps be taken to
ensure execution of the relevant orders.
[52]
A
court will grant
a stay of execution in terms
of Uniform Rule 45A where the underlying
causa
of a judgment debt is being disputed, or no
longer exists, or when an attempt is made to use the levying of
execution for ulterior
purposes. As a general rule, courts acting in
terms of this rule will suspend the execution of an order where real
and substantial
justice compels such action.
[54] There certainly
was no case to be made at any stage for a rescission of any part of
Froneman J’s judgment.
The learned judge
had correctly concluded that, insofar as the offending structures
were concerned, and having regard to the unlawful
conduct of the Shan
Trust over the years, the time for finality had come.
The
principle of legality, a cornerstone of the Constitution, applies to
government and governed alike.
Repeat
transgressors such as the Shan Trust are undeserving of the
protection
afforded by Van der Byl AJ.
Froneman J intended finality. The effect of Van der Byl AJ’s
judgment is recrudescence.
(emphasis added)
[119] The Supreme Court of appeal
dismissed Equus’ application for leave to appeal against the
demolition orders handed down
by Froneman J.
[120] In
Kotze
v Kotze
17
Herbstein J held:
“
The
matter is one of public policy which requires that there shall be
obedience to
orders of Court and
that people should not be allowed to take the law into their own
hands”.
[121] The aforesaid approach was
adopted by Streicher JA in
Clipsal
Australia v GAP Distributors
18
where the learned judge of appeal
also referred with approval to
Culverwell
v Beira
19
,
where Goldstein J said that chaos would result if people were allowed
to defy court orders with impunity. See also:
Bezuidenhout
v Patensie Sitrus Beherend Bpk
20
.
[122] Equus has manifestly adopted
the stance that court orders are not binding on it and it will
continue to do as it deems fit.
Regrettably this brazen attitude
apparently enjoys the support of government officials at various
levels.
[123] Given Equus’ course of
conduct thus far, there are no circumstances which could possibly
persuade me that real and substantial
justice compels me to order the
suspension of the orders granted by Froneman J. On the contrary, I
consider it appropriate to make
orders in this matter to ensure
compliance with the aforesaid demolition orders.
[124] I further make the following
orders in this matter:
[125]
Review Application (Case
No. 3399/2010)
The decision of the first
respondent dated 21 May 2010 and published in Notice 185, Government
Gazette No 2372, is hereby set
aside and substituted with the
following:
“
The
Application for the removal of the four restrictive conditions
(Clauses C (i), (ii), (iii) and (iv)) contained in Deed of Transfer

No. T 81901/2006 is hereby refused”.
The first and second respondents
are ordered to pay the applicants’ costs of this application
(including the costs of two
counsel) jointly and severally, the one
paying the other to be absolved.
[126]
Counter–Application
by the first and second respondents (Case No. 3498/2010)
The First and Second Respondents’
counter-application delivered on 18 January 2011 is dismissed.
The First and Second Respondents,
jointly and severally the one paying the other to be absolved, shall
pay the Applicant’s
costs in the aforesaid
counter-application, including the costs of two counsel.
The First and Second Respondents
shall comply with paragraph 1.2 of this Court’s order of 20
October 2009 in case number
3649/2006 and paragraph 2.1 of this
Court’s order of 20 October 2009 in case number 1440/2007 by
demolishing the structures
and buildings referred to therein within
a period of two months from the operative date of this order, which
shall be either
the date of the present order, or in the event of
any applications for leave to appeal, from the date of the dismissal
of the
last of such applications or the dismissal of the last of any
ensuing appeals as the case may be. For the avoidance of doubt, it

is stated that the structures and buildings referred to in paragraph
2.1 of this Court’s order of 20 October 2009 in case
number
1440/2007 are all of the structures and buildings upon Erf 102
Summerstrand.
Should the First and Second
Respondents fail or refuse to comply fully and timeously with
paragraph 2.1 of this Court’s
order of 20 October 2009 in case
number 1440/2007 by demolishing the structures and buildings
referred to therein within a period
of two months from the operative
date of this order, the Third Respondent shall comply with such
order by demolishing the buildings
referred to therein within a
period of nine months from the operative date of this order.
Should none of the Respondents
comply or comply fully with paragraph 1.2 of this Court’s
order of 20 October 2009 in case
number 3649/2006 and paragraph 2.1
of this Court’s order of 20 October 2009 in case number
1440/2007 by demolishing the
structures and buildings referred to
therein within the period of nine months from the operative date of
this order:
the deputy sheriff, assisted by
such contractors and other persons as are necessary for the task,
shall be authorised to demolish
the said structures and buildings
forthwith;
the Respondents shall be liable
for the costs attendant upon the demolition by the deputy sheriff,
jointly and severally, the
one paying the others to be absolved.
Should the First and Second
Respondents not comply or comply fully with the order in paragraph 3
above by demolishing the structures
and buildings referred to
therein within the period of two months from the operative date of
this order, the Applicants may apply
on the same papers, duly
supplemented, for orders declaring the said Respondents to be in
contempt of such order, imposing on
them such punishment as this
Court deems fair and appropriate, directing them to pay the costs of
that application on the attorney
and client scale including the
costs of two counsel where employed, jointly and severally the one
paying the others to be absolved,
and granting the Applicants such
further and/or alternative relief as this Court may deem fit.
Should the Third Respondent not
comply or comply fully with the order in paragraph 4 above by
demolishing the structures and buildings
referred to therein within
the period on nine months from the operative date of this order, the
Applicants may apply on the same
papers, duly supplemented, for
orders declaring the said Respondent to be in contempt of such
order, imposing on it such punishment
as this Court deems fair and
appropriate, directing it to pay the costs of that application on
the attorney and client scale
including the costs of two counsel
where employed, and granting the Applicants such further and/or
alternative relief as this
Court may deem fit.
[127]
Contempt Application (Case
No. 3498/2010)
The proceedings in the present
matter are postponed to a date to be arranged with the Registrar of
this Court for the hearing
if
viva voce
evidence.
The issue to be resolved at such
hearing is whether or not the First and Second Respondent’s
non-compliance with paragraph
1.2 of this Court’s order of 20
October 2009 in case number 3649/2007 and paragraph 2.1 of this
Court’s order of
20 October 2009 in case number 1440/2007 was
wilful and
mala fide.
The evidence to be adduced at the
aforesaid hearing shall be that of any witnesses whom the parties or
either of them may elect
to call, subject however to what is
provided below:
save in the case of any persons
who have already deposed to affidavits in these proceedings,
neither party shall be entitled
to call any person as a witness
unless:
he or she has served on the other
party, at least 14 days before the date appointed for the hearing,
a statement by such person
wherein the evidence to be given in
chief by such person is set out; or
The Court, at the hearing,
permits such person to be called despite the fact that no such
statement has been so served in
respect of his evidence;
any party may subpoena any person
to give evidence at the hearing, whether such person has consented
to furnish a statement
or not;
the fact that a party has served a
statement or has subpoenaed a witness, shall not oblige such party
to call the witness concerned;
Within two months of the making of
this order, each of the parties shall make discovery on oath, of all
documents relating to
the issues referred to above, which documents
are, or have at any time been, in possession or under control of
such party.
Subject to paragraph 6 below such
discovery shall be made in accordance with Rule 35 of the Uniform
Rules of Court and the provisions
of that Rule with regard to the
inspection and production of documents discovered shall be
operative.
In the case of the First and Second
respondents such discovery shall include an obligation to produce
for inspection and copying
by the Applicants any written advice,
memoranda and notes of the advice referred to in paragraph 9 of the
Second Respondent’s
supplementary answering affidavit of 21
November 2011 and in paragraphs 12.3 to 12.4 and 22.5 to 22.8 of the
Second Respondent’s
main answering affidavit of 18 January
2011, it being recorded that the Applicants have undertaken not to
disclose the contents
of any of such written advice, memoranda or
notes to any Judge seized with the Applicant’s application for
judicial review
in case number 3399/10 or any Judges or Court seized
with any application for leave to appeal or any appeal in relation
to that
matter.
All questions of costs shall stand
over for later determination.
________________
E REVELAS
Judge of the High Court
Counsel for the Applicants’:
Adv Rogers & Adv Euijen
Instructed by: De Villiers and
Partners
Counsel for the 1
st
Respondent: Adv Buchanan & Adv Gqanana
Instructed by: State Attorneys
Port Elizabeth
Counsel for the 2
nd
Respondent: Adv Ford & Adv Beard
Instructed by: Pagdens Aottorneys
Date Heard: 20 April 2012
Date Delivered: 23 November 2012
1
Van
Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others
NNO v Van Rensburg NO and Others
2011
(4) SA 149
SCA at para 31.
2
Malan
and Another v Ardconnel Investments (Pty) Ltd
1988 (2) SA 12
(A)
at 40 E-F where Joubert JA added: ‘Moreover, a consent by a
local authority in terms of a town planning scheme does
not
per
se
authorize the user of an erf contrary to its registered title
deed conditions.
3
2001
(4) SA 294
(C) at 324 E-G.
4
Camps
Bay Ratepayers and Resident’s Association and Others v
Minister Planning, Culture and Administration, Western Cape,
and
Others
at 324 E.
5
1992
(4) SA 69
(A) at 93 G-H.
6
At
93 - G
7
At
321 B-E. See also:
Walele v City of
Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
CC para 60 note 73, where the approach as set out in this paragraph
of Griesel J was followed.
8
See
also:
Van Rensburg and Another NNO v Naidoo and Others NNO
;
Naidoo and Others NNO v Van Rensburg NO and Others
2011 (4)
SA 149
(SCA) at para 31.
9
At
paragraph 36 and also by Froneman J as stated before in
van
Rensburg and Anotehr NNO v Nelson Mandela Metropolitan Municipality
and Others
2008 (2) SA 8
(SE), para 8.
See also:
Ex parte Rovian Trust (Pty)
Ltd
1983 (3) SA 209
D and
Malan
and Another v Ardconnel
(
supra
)
at 40 B-I.
10
First
National Bank of South Africa t/a
Wesbank v Commissioner South African Revenue Service and Another;
First National Bank of SA
Ltd t/a Wesbank v Minister of Finance
2002
(4) SA 708
(CC) at para 100.
11
2003
(2) SA 136
(C) at para 19.
12
1999
(3) SA 304
(LAC) at paragraphs 31.
13
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as amicii
curial
)
2006 (2) SA 311
(CC).
14
See,
inter alia, Mining Commissioner v Getz
1915 TPD 323
;
de
Freitas v Somerset Mining Policy
1997 (3) SA 1080
(C) at 1082
H-I;
Financial Services Board and Another v Schalk Willem de Wet
No and Others
2002 (3) SA 525
(C) at 581 D-E.
15
Bronthorstspruit
Liquor Licensing Board v Rayton Bottle Store (Pty) Ltd and Another
1950 (3) SA 598
(T) at 601 F-H.
16
Administrative
Law (1984) at 373.
17
1953
(2) SA 184
(C) at 187 F-G.
18
2010
(2) 289 (SCA) at 298 G-H – 299A-B.
19
1992
(4) SA 490
(W) at 494 A-E.
20
2001
(2) SA 224
E at 228F – 23A.