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[2013] ZAECPEHC 3
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Scott NO and Another v Nelson Mandela Bay Metropolitan Municipality (920/2012) [2013] ZAECPEHC 3 (29 January 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case No.: 920/2012
Date heard: 15 November 2012
Date
delivered: 29 January 2013
In the matter between:
CAMERON
SCOTT N.O.
First
Applicant
ANTHONY
JAMES CHARLTON REID N.O.
Second
Applicant
and
NELSON MANDELA BAY METROPOLITAN
MUNICIPALITY
Respondent
J U D G M E N T
DAMBUZA, J
:
The applicants seek an order that
the respondent be ordered to provide a supply of electricity to erf
6888 Korsten (the property).
In the alternative, the applicants seek
an order that the respondent’s decision not to provide such
electricity be reviewed
and set aside and be substituted with the
order sought in the main.
Further, the applicants seek an order
that the failure by the respondent to make a decision on a proposal
for an amendment of
a servitude which appears in the title deed
relating to the property, be reviewed and set aside, and that the
respondent be ordered
to facilitate the amendment as proposed, by
executing a notarial deed of amendment.
The two applicants are trustees in
the Cameron Scott Family Trust (the Trust). The Trust invests in
immovable property and other
capital investments.
The respondent is the Nelson Mandela
Bay Municipality, a municipality established in terms of the
provisions of the
Local Government Municipal Structures Act, 117 of
1998
.
During 2002 the Trust acquired the
property in question. In 2010 the Trust set out to develop the
property by building a warehouse
thereon. The plans for the
development were duly approved and construction started in the same
year (2010).
At some stage subsequent to
completion of the building it became apparent that the warehouse
encroached on a portion of the property
which is reserved for public
parking. It is common cause that the building plans in respect of
the warehouse building had been
approved by the respondent on two
occasions prior to construction of the building. The reservation for
public parking is set
out in the following condition contained in
the title deed relating to the property:
“
In
so far as concerns the figure HjuvklmnDEFGyxw on Diagram No. 137/1996
aforesaid:
Subject
to the following conditions contained in Deed of Transfer 37968/1996
imposed by the Municipality solely in its favour and
enforceable by
it, binding the Transferee and its successor-in-title (all of whom
are mentioned in the hereinafter mentioned expression
“owner”)
provided that the Municipality shall always have the right (on such
terms as it may in its sole discretion
impose) to vary, or relax any
of the said conditions by agreement with the owner, namely:-
(d)
The property hereby transferred is subject to a servitude for parking
purposes in favour of the general public
”
(emphasis supplied)
It is the servitude referred to in
this condition that is the subject of these proceedings. The
encroachment on the parking area
reduces the portion of the property
reserved for public parking by 446m².
Reverting to the building, it is not
in dispute that on completion of the construction of the warehouse
building, the Trust submitted
an application for provision of
electricity supply to the property. On 25 October 2010 the
respondent furnished a quotation of
the amount which the Trust had
to pay therefore. Payment was made by the Trust, accordingly, on 27
October 2010.
The property is located within a
business area in Korsten, in close proximity with a number of other
businesses. The parking area
provided for in the servitude would be
for use by members of the public visiting all these businesses.
In attempting to compensate for the
encroachment, the applicant has, since the discovery of the
encroachment, made a number of
proposals to the respondent. It is
the last of these proposals that is the subject of this application.
In essence the proposals
suggest relocation of the portion of the
parking reduced as a result of the encroachment to a different
portion of the property.
Included in the proposals and discussions
relating thereto, was a proposal made on behalf of the Trust to
address a concern expressed
by Mr Balu Naran, an owner of a
neighbouring business property, regarding access by members of the
public to the businesses from
a nearby street, Essex Street. More
specifically, in the three proposals submitted to the respondent, on
behalf of the Trust,
on 6 October 2010 it was suggested that
additional 11 parking bays be provided on Essex Street, with a
pedestrian alleyway and
access control thereon to the businesses, to
resolve the concern relating to access from Essex Street. Regarding
the encroachment,
the suggestion was that a portion of the property
(identified in a diagram which forms part of the papers and
described as bordering
on Bester to Cottrell Streets) be reserved to
compensate for the encroachment. The Trust would be liable for
expenses related
to the paving and marking of the “new”
parking bays.
In a letter dated 21 October 2010,
addressed to the Trust, the respondent advised, amongst others that,
“
certain proposals were put on the table to resolve, inter
alia, the issue of access, but that your proposal has been rejected
by the concerned landowners”.
Thereafter representatives
of the Trust sought and ultimately secured a meeting with relevant
functionaries of the respondent
whereat the proposal under
consideration was presented on behalf of the Trust. The allegation,
on behalf of the Trust, that
at the meeting held in July 2011 the
proposal was tabled, on behalf of the Trust, and an undertaking was
given that the respondent
would advise the Trust of its decision in
due course, remains undisputed.
It is common cause that despite the
proposal presented to the respondent in July 2011, the issue of the
encroachment was never
resolved; neither was the supply for
electricity provided. It is in these circumstances that this
application was launched.
The application is opposed on three
grounds, namely, that:
the respondent has no power to
effect the amendment sought;
contrary to the practice in this
Division, the relief sought is couched in final terms whereas the
requisites for a final
relief have not been satisfied, and
there has been no joinder of the
Registrar of Deeds as prescribed in the rules of practice in this
Division.
I deal with these issues in reverse
order.
Was it necessary to join the
Registrar of Deeds?
In contending that the application is
fatal for non-joinder of the Registrar of Deeds, the respondent
relies on
Rule 15(f)
of the Rules of Practice in this Division which
provides that:
“
As
a general rule, notice must be given to the Registrar of Deeds in all
applications for authority or for an order involving the
performance
of any act in a deeds registry (including an application for a change
in matrimonial regime)
before
the court is
called upon to issue an order, even in the form of a rule nisi”.
As it is submitted in the applicant’s
Heads of Argument the Rule mirrors the provisions of
section 97
of
the
Deeds Registries Act No 47 of 1937
, which read thus:
“
Before
any application is made to the court for authority or an order
involving the performance of any act in a deeds registry,
the
applicant shall give the registrar concerned at least seven days’
notice before the hearing of such application and such
registrar may
submit to the court such report thereon as he may deem desirable to
make”.
The provisions of
section 97
are
considered to be merely directory and the court may condone late
notice to the registrar or dispense with the Registrar’s
report, although the court usually attaches importance to that
report.
1
I agree with the submission, on behalf of the applicant, that
neither the Rule nor the provisions of
section 97
of the
Deeds
Registries Act require
“joinder”
of the registrar of Deeds. All that is required is that the
Registrar be given notice of the proceedings. Ordinarily, an
application is brought on notice and addressed to the registrar and
a particular person when relief is claimed against such a person,
or
where it is necessary and proper to give such a person notice of the
application.
2
In so far as notice should be given to a party against whom no
relief is sought, the principles relating to joinder only apply
in
cases where the relief claimed is of such a nature that the rights
and interest of the person may be affected by an order
the court may
make pursuant to the application.
3
In this case no rights and/or interests of the Registrar are
likely to be affected by the order that this court may give. I
do
accept that the law requires that notice be given to the Registrar,
but I consider relevant, in favour of the applicants,
the fact that
the application was served on the office of the Registrar and a
report prepared by the Registrar forms part of
the record. I am
therefore satisfied that the purpose which the rule was intended to
serve has been met.
Whether the requirements for a
final relief have been met?
The respondent contends that the
applicant has failed to satisfy the requirements for a final relief.
Specifically, the contention
is that the applicant has failed to
establish a clear right to a decision,
4
given the respondent’s case that the applicant’s
proposal was rejected.
I do not agree. The submission by
Mr
Euijen
who appeared on behalf of the respondent was that the
applicant was advised of the rejection of its proposal in the letter
dated
21 October 2010. Indeed, the relevant portion of that letter
reads: “
it is further recorded that certain proposals were
put on the table to resolve. Inter alia, the issue of access, but
your proposal
has been rejected by the concerned land owners”.
The letter refers to the issue of access, which is not the
relevant proposal for the purposes of this application, but I am
prepared
to accept that a reader would have concluded from the
overall content thereof, that the proposal in question was also
rejected.
But rejection of the proposal by the concerned land owners
is a response or representation by the land owners concerned and not
a rejection by the respondent. The respondent remained enjoined to
consider the proposal in the context of such rejection and
make its
own decision thereon, and communicate that decision to the Trust.
Even further, as I have stated after
receipt of the letter of 21 October 2010 the applicant submitted a
further proposal to the
respondent. The respondent
“says”
it, again, held a meeting (I assume the meeting held in July 2011)
and considered the later proposal and, because nothing therein
persuaded it to change its earlier decision,
the proposal
“remains rejected
”
. This
response is vague. It conflates the earlier proposal with the
proposal in question. It is not the respondent’s case
that a
decision was taken to reject the last proposal on its own merits,
neither is its case that the Trust was informed of the
rejection of
the proposal in question. It is not in dispute that there was an
obligation on the respondent to inform the Trust
of its decision
pursuant to consideration of the applicant’s latest proposal.
And as I stated earlier, the allegation on
behalf of the Trust that
an undertaking was made at the meeting held in July 2011, to advise
the Trust of the respondent’s
decision remains undisputed. I
am satisfied that applicant’s right to a decision has been
established. I am further satisfied
that the right of the Trust to a
response has been interfered with by the failure to make the
required decision.
It was also submitted on behalf of
the respondent that the Trust does have an alternative remedy in
that it could have brought
an application for amendment of the
servitude in terms of the Removal of Restrictions Act, No 84 of
1967. The alternative relief
suggested by the respondent would
still have required that consent of the respondent be obtained, as
the only entity with
locus
standi
in respect of the
right in question.
5
On the evidence before me I can only conclude that even if the
Trust had taken the route suggested by the respondent it would
have
encountered the same difficulty that led it to approach court. I am
satisfied that a proper case has been made for both
the relief based
on PAJA and for specific performance. In the context of
Administrative Law, a
Mandamus
is available to serve two
purposes; to compel performance of a specific statutory duty, and to
remedy the effects of unlawful
action already taken.
6
Lastly, the requisite that an applicant for a final order of
interdict becomes relevant, in my view when the applicant concerned
could have obtained adequate relief through an award of damages.
7
Is the relief sought by the
applicants competent?
Firstly, if the order is granted, any
act by the respondent, in compliance therewith, will not be an
administrative decision;
it will be an act of compliance with an
order of court. Consequently, there is no merit in the contention,
by the respondent,
that the relief sought is incompetent because
there will have been no consultation by the respondent, with members
of the public
as required by law.
The respondent further contends that
the applicant has not shown any exceptional circumstances justifying
imposition, by the court,
of its decision on the respondent as
required in terms of the Promotion of Administrative Justice Act, No
3 of 2000 (PAJA). Section
8(1)(c)(ii) of PAJA provides that a court
or tribunal, in proceedings for judicial review in terms of section
6 (1) of that Act
, may grant an order that is
just
and equitable
, including
orders setting aside the administrative action, and,
in
exceptional cases
,
substituting or varying the administrative action or correcting a
defect resulting therefrom.
The question of when a court will
substitute its own decision for that of an administrative
authorities has enjoyed the attention
of the courts and legal
writers on many occasions. Baxter
8
says the following in the issue:
“
The
function of judicial review is to scrutinize the legality of
administrative action, not to secure a decision by a judge in place
of an administrator. As a general principle, the courts will not
attempt to substitute their own decision for that of the public
authority; if an administrative decision is found to be
ultra
vires
the court will usually set it aside and refer the matter
back to the authority for a fresh decision. To do otherwise would
constitute
an unwarranted usurpation of the powers entrusted [to the
public authority] by the Legislature. Thus it is said that:[t]the
ordinary
course is to refer back because the Court is slow to assume
a discretion which has by statute been entrusted to another tribunal
or functionary. In exceptional circumstances this principle will be
departed from. The overriding principle is that of fairness:
‘
the
Court has a discretion, to be exercised judicially upon a
consideration of the facts of each case, and….although the
matter will be sent back if there is no reason for not doing so, in
essence it is a question of fairness to both sides.’”
In
Steenkamp
No v Provincial Tender Board, Eastern Cape
9
Moseneke DCJ held that:
“
It
goes without saying that every improper performance of an
administrative function would implicate the Constitution and entitle
the aggrieved party to appropriate relief. In each case the remedy
must fit the injury. The remedy must be fair to those affected
by it
and yet vindicate, effectively the right violated. It must be just
and equitable in light of the facts, the implicated constitutional
principles, if any, and the controlling law…The purpose of a
public law remedy is to pre-empt or correct or reverse an improper
administrative function. In some instances the remedy takes the form
of an order to make or not to make a particular decision or
an order
declaring rights or an injuction to furnish reasons for an adverse
decision. Ultimately the purpose of a public remedy
is to afford the
prejudiced party administrative justice, to advance efficient and
effective public administration compelled by
constitutional precepts
and at a broader level, to entrench the rule of law”.
With these principles in mind I turn
to consider the question of the appropriate remedy to be granted in
this application. It
is not in dispute that the encroachment by the
applicant was erroneous. The respondent is itself also guilty of
approving the
Trust building plans erroneously. The building now
stands complete. There is no counter proposal by the respondent as
to how
the impasse can be resolved. The Trust derives no benefit
from the money paid to the respondent in 2010 for provision of
electricity
supply; the respondent is content with retaining
possession of the money whilst providing no value for it. It is not
the respondent’s
case that the land offered by the Trust is
not suitable as substitute for the reduced parking. At this stage it
seems that the
only course open to the Trust would be to demolish
the building or a portion thereof. Such a course would be unfair, in
my view,
given that the encroachment was not intentional and that
there is a proposal to adequately compensate therefore, the cost of
which will be borne solely by the Trust.
The frustration experienced by the
applicants (and the Trust) as a result of the delay by the
respondent in making a decision
is evident from numerous emails
addressed to the respondent’s officials on behalf of the
Trust. The majority of these emails
failed to elicit response from
the respondent. The Trust has, in the meantime, not been able to use
the building for the purpose
for which it was built because of the
failure to provide for supply of electricity to the property. On the
evidence before me
I can only conclude that when the agreement to
provide for electricity was concluded the respondent was already
aware of the
encroachment.
Further, contrary to the respondent’s
contention that the servitude is incapable of amendment by agreement
between the parties,
I am satisfied from the language used in the
condition, that such an agreement was envisaged and authorised when
the condition
was imposed.
Having considered these issues I am
satisfied that on the evidence on record that this court can make a
decision on the proposal
and that considerations of fairness justify
imposition of the court’s decision on the respondent. The
matter, however,
does not end there.
The relief I grant must also take
into consideration the issue of whether the applicant should have
given notice of the application
to other business or land owners
and/or members of the public (the interested parties). The
submission on behalf of the respondent
is that notice should have
been given to interested parties (i.e. those whose rights might be
affected by the order sought).
Alternatively, the applicants
should have brought an application for a Rule
Nisi
as per
practice in this Division in applications for amendment of
restrictive conditions of title.
The practice of issuing a Rule
Nisi
where amendment of conditions of title is sought is not recognised
only in this Division. In
Ex
parte: Saiga Properties (Proprietary) Limited
10
Leach J (as he then was) referred to this procedure as set out by
Nienaber J in
Ex parte
Rovian Trust (Pty) Limited.
11
At 478 of
Ex parte Saiga
Properties
Leach J held
that:
“
The
practice of issuing a rule
nisi
in a case such as this has
developed as a result of the difficulty of identifying substantial
numbers of interested parties, the
probable impossibility of securing
the express consent of all such parties and the high cost of serving
the application on all
of them even if identified...But that practice
does not obviate the necessity for steps to be taken to obtain
consent of parties,
clearly interested and readily identifiable: for
example the owners of land immediately adjacent to the property in
question, the
local authority or the relevant township board. Nor
does it do away with the necessity of giving such interested parties
notice
of the application so as to enable them to oppose the relief
sought if so inclined.”
I do agree with the applicant’s
contention that the servitude in question is not a restrictive right
in the strict sense;
that it is a personal right registered in
favour of the respondent and that only the respondent has
locus
standi
to enforce same. I accept the distinction by
Mr
Richards
on behalf of the applicants, that unlike the servitude
in question, restrictive conditions of title (in the narrow sense)
are
statutory restrictions imposed on the owner of the land in
pursuance of a specific township establishment legislation, and
registered
against the title deeds of erven for the
reciprocal
benefit of owners for the benefit of owners and for the purposes of
retaining a specific character of the neighbourhood
.
However, this does not, in my view,
detract from the fact that the servitude translates to a right
enjoyed by members of the public,
although held only by the
respondent. My view is that considerations of justice and fairness
demand that those who enjoy the
right flowing from the servitude
must be made aware of the impending alteration to the right they
enjoy. I do not agree that
the distinction between the personal
servitudes in question and praedial servitudes is sufficient ground
to deprive those who
enjoy the rights flowing from the personal
servitudes of that notice.
In this case the notice would not be
intended to afford the interested parties opportunity to consent to
or to oppose the proposed
amendment; it would serve to ensure that
interested parties are afforded opportunity to make to the court
such representations
as they deem necessary to ensure the most
informed decision. It is also of significance that, on the evidence,
there were objections
to previous proposals and, I am not able to
determine from the record whether those who had objected to previous
proposals, together
with any other interested persons, were alerted
to the proposal under consideration. A submission is made in the
applicant’s
Heads of Argument that the owners of the
neighbouring businesses were at all times represented by Mr Naran.
There is no evidence,
however, as to the identity of the business
owners represented by Mr Naran and/or the scope of Mr Naran’s
authority.
Having considered all these issues I
am satisfied that the applicants have made out a good case for the
order sought. However,
I will only grant a provisional order, to
afford interested parties opportunity to make representations prior
to finalization
of the application. I find no reason, however, why
the respondent should not comply with its obligation to provide
supply of
electricity, pending the finalization of the application.
The following order shall therefore
issue:
A Rule
Nisi
do hereby issue
calling upon interested parties to show cause before this Court on
or before 5 March 2013 at 09h30 why the
following order should not
be granted, that:
within seven days of this order, the
respondent is to provide a supply of electricity to the applicants
at erf 6888 Korsten
as undertaken by it in the electricity supply
agreement dated 27 October 2010 concluded between the applicant and
the respondent;
The failure of the respondent to
make a decision on the applicant’s proposal for the amendment
of the servitude described
in paragraph VI (d) of title deed
T3295/2003 annexed as CS 1 to the founding affidavit (the
servitude), as contained in annexure
CS 24 to the founding
affidavit (the proposal) be declared unlawful;
The respondent be ordered to execute
a notarial deed of amendment of the servitude to give effect to the
proposal contained
in annexure CS 24 to the founding affidavit, by
cancelling the servitude contained in paragraph VI of Deed of
Transfer 3295/2003
in respect of erf 6888 Korsten over the portion
of said erf marked “Area to amend 446m²” on
annexure A to
the said CS 24 and to register the said servitude
over that portion of the said erf marked as: “amended area
446m²”
on annexure B to the said CS 24 and to take the
necessary steps to register same in the Deeds Office, against
payment by the
applicants of the costs of such steps.
The respondent be ordered to pay the
costs of this application.
A copy of this order shall:
2.1 be served on all the land owners
of the properties adjoining erf 6888 Korsten;
2.2 be published once in
“The
Herald”
newspaper and in
“Die Burger”
newspaper.
Paragraph 1.1 of this order shall
operate with immediate effect pending the finalization of this
application.
_______________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances:
For the applicants:
Mr JG Richards
Instructed by:
Anthony Incorporated, Port Elizabeth
For the respondent:
Mr TMG Euijen
Instructed by:
Gray Moodliar Attorneys, Port
Elizabeth.
1
Nel H S
Jones, CONVEYANCING in South Africa,
4
th
edition at 14 and the authorities cited therein.
2
Rule 6(2) of the Rules regulating practice in Superior Courts
3
Erasmus, Superior Court Practice, at B1-41
4
See
Setlogelo v
Setlogelo
1914 AD 221
at 227
5
See the discussion below on the procedure where
an amendment of restrictive conditions; also
Ex
Parte Saiga Properties (Proprietary) Limited [1997] 2 All SA (E)
474.
6
Baxter; Administrative Law, at 690.
7
See discussion on final interdicts in the
LAWSA
Vol 11
at 289.
8
Supra
at 681.
9
[2006] ZACC 16
; 2007(3) SA 121 (CC); 2007(3) BCLR
300 (CC) para 29; See also
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd
2011 (3) BCLR 229
(CC) at 259D-F.
10
[
1997] 2 All SA 474
(E) at 478e-g
11
1983 (3) SA 209
(D)