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[2013] ZAECPEHC 45
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Vermaak and Others v Minister of Water and Environmental Affairs of the Republic of South Africa and Others (224/2013) [2013] ZAECPEHC 45 (17 September 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE
DIVISION, PORT ELIZABETH
CASE NUMBER: 224/2013
Date heard: 13 September 2013
Date delivered: 17 September 2013
OF INTEREST
In
the matter between
PETRUS
JOHANNES VERMAAK
.............................................................
First
Applicant
ROBERT
C.A. BELL
.............................................................................
Second
Applicant
JENNIFER
BELL
.......................................................................................
Third
Applicant
GEORGE
CHAMBERLAIN
.....................................................................
Fourth
Applicant
GERHARD
SAAYMAN
...............................................................................
Fifth
Applicant
CAREL
SCHEEPERS
...............................................................................
Sixth
Applicant
LERISCHIA
SCHEEPERS
...................................................................
Seventh
Applicant
SHIRLEY
WAGNER-WELSH
.................................................................
Eighth
Applicant
JOHAN
C WAGNER
.................................................................................
Ninth
Applicant
DEON
P GOUWS
....................................................................................
Tenth
Applicant
DEAL
MAKING INVESTMENTS (PTY) LTD
.......................................
Eleventh
Applicant
JAN
BURGER PIENAAR
.......................................................................
Twelfth
Applicant
DAVID
LISTER
.................................................................................
Thirteenth
Applicant
VIRGINIA
LISTER
...........................................................................
Fourteenth
Applicant
and
THE
MINISTER OF WATER
AND
ENVIRONMENTAL AFFAIRS OF THE
REPUBLIC
OF SOUTH AFRICA
...........................................................
First
Respondent
NELSON
MANDELA BAY MUNICIPALITY
......................................
Second
Respondent
METROWIND
(PTY) LTD
.....................................................................
Third
Respondent
RUBICEPT
(PTY) LTD
.......................................................................
Fourth
Respondent
JACOBUS
OLIVIER N.O.
......................................................................
Fifth
Respondent
DEON
OLIVIER N.O.
............................................................................
Sixth
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HOUSING AND TRADITIONAL AFFAIRS
EASTERN
CAPE PROVINCE
.........................................................
Seventh
Respondent
JUDGMENT
GOOSEN, J.
The first, second, third, fifth,
sixth, seventh, tenth, eleventh, twelfth and thirteenth applicants
seek leave to appeal against
two judgments delivered in this matter.
The first judgment was delivered on 19 March 2013. It concerned a
preliminary issue relating
to the non-joinder of the seventh
respondent. In respect of that judgment the applicants seek leave to
appeal only against the
costs order. The second judgment was
delivered on 1 August 2013. It concerns the merits of the main
application for an interim
interdict.
The application for leave to appeal
was launched on 23 August 2013. Although the application for leave
to appeal was presented
as a composite application in respect of the
two judgments it comprised two applications brought as one. The
application for
leave to appeal against the judgment of 1 August
(the main judgment) was, by my calculation, launched one day after
the expiry
of the period provided for in Rule 49. Nothing was made
of this by the respondents and, to the extent necessary, the
non-compliance
is condoned. Insofar as leave to appeal against the
judgment of 19 March (the preliminary judgment) is concerned, it was
considerably
out of time. No application for condonation was
brought. When asked about this applicant’s counsel suggested
that the order
only became appealable when the main judgment was
delivered and that, in any event, the applicants seek to prosecute a
single
appeal.
There is, in my view, no basis to
treat the application as some sort of “composite”
application. The applicants require
leave to appeal against each of
the judgments. There is also no basis upon which the judgment of 19
March can be considered as
only having become appealable on 1 August
when the main judgment was delivered. Since the application in
respect of the 19 March
judgment is out of time condonation should
have been sought. The respondents did not, however, take this point
and, as I understood
their position, they were prepared to address
the merits of the application and dispose of it on that basis. I
shall therefore
deal with the application on that basis.
Before dealing with each of the
applications for leave it is appropriate to record that the
Superior
Courts Act, 10 of 2013
was assented to on 12 August 2013 and came
into operation on 23 August 2013.
1
This application was commenced on 23
August 2013. Accordingly the provisions of the
Superior Courts Act
appear
to me to apply in respect of this application for leave to
appeal.
2
For reasons which will become
apparent hereunder, I do not consider that the provisions of the
Superior Courts Act materially
alter the principles to be applied in
determining an application for leave. It is however appropriate to
draw attention to the
fact that the
Superior Courts Act provides
in
section 17
for leave to appeal,
inter
alia
, as follows:
1. Leave to appeal may
only be given where the judge or judges concerned are of the opinion
that –
(a) (i) the appeal would
have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) The decision sought
on appeal does not fall within the ambit of
section 16
(2) (a); and
(c) Where the decision
sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and
prompt resolution of the issues
between the parties.
Section 16(2)(a)
is framed in terms
similar to
section 21A
of the now repealed Supreme Court Act, 1959.
It provides that:
(a) (i) When at the
hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect
or result, the appeal
may be dismissed on this ground alone.
(ii) Save under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs.
As already stated the applicants seek
leave to appeal only against the costs order made on 19 March.
Subsequent to that judgment
the applicants joined the seventh
respondent and the main application proceeded on that basis. The
challenge to the costs order
is premised upon the contention that
this court erred in several respects in determining that the seventh
respondent was a necessary
party who had a material interest in an
issue to be decided in the main application.
The principles governing an
application for leave to appeal where the only issue to be
determined on appeal is the question of
costs are well established.
They are: that such leave is not lightly granted for the reason that
costs is a matter of judicial
discretion and that it is in the
interests of justice that where the merits of an issue have been
determined finality should
be regarded as having been reached; that
the court will not grant leave in respect of ‘dead’ or
moot issues unless
there is a matter of principle involved, the
costs involved are not insubstantial and there are reasonable
prospects of success
on appeal (see
Tsosane & Others v
Minister of Prisons
1982 (3) SA 1075
(C) at 1076E- 1077B; see
also
W v S and Others (2)
1998 (1) SA 499
(N) at 502, where
the court held that the application of these principles was not
affected by the amendment of s 20 of the now
repealed Supreme Court
Act, 1959).
In
POPCRU v Minister of
Correctional Services (No 2)
2008 (3) SA 129
(E) Plasket J held
that regard must be had to s21A of the Supreme Court Act at the
stage of deciding whether or not to grant
leave to appeal. The
learned judge said (at 132):
I may add that it seems
to me that it is consistent with the purpose of s21A, as explained by
Olivier JA in the
Premier, Mpumalanga
case, and with the
common law that it has replaced, that the Court of first instance may
also refuse leave to appeal because the
judgment or order on appeal
will have no practical effect. It has, in any event been held in this
Court, by Chetty J in
Give Ziyawa Construction CC v Ndlambe
Municipality and Another
that although s21A refers to an appeal,
a Court hearing an application for leave to appeal would be justified
in refusing leave
where the grant thereof would have no practical
effect.
Section 17(1)
of the
Superior Courts
Act puts
the issue beyond doubt and requires that the court
considering an application for leave to appeal will only grant leave
if it
is of the opinion that the matter
does not
fall within
the ambit of
s16(2)(a).
In respect of the preliminary
judgment the appeal would, in my view, have no practical effect. The
seventh respondent was in fact
joined and no purpose whatsoever
could be served by a finding overturning the basis upon which it was
decided that the seventh
respondent was a necessary party, other
than as a basis to overturn the costs order, which was granted
pursuant to the postponement
of the main application at that stage.
It is of course so that the question
whether a judgment or order on appeal may have a practical effect
may, in exceptional circumstances,
be decided with reference to
considerations of costs (see
s16(2)(a)
of the
Superior Courts Act;
compare
also
Oudebaaskraal Edms Bpk v Jansen van Vuuren
2001
(2) SA 806
(SCA) and
Radio Pretoria v Chairperson, Independent
Communication Authority of South Africa and Another
2005 (1) SA
47
(SCA)).
In the
Oudebaaskraal
matter
the exceptional circumstances consisted of the fact that costs were
a material factor, the trial having lasted nine days
and involving
senior counsel and numerous expert witnesses
and
that the
relevant legislation had been repealed at a stage when the appeal
was enrolled for hearing.
In the
Radio Pretoria
matter
the court set out the circumstances applicable in
Oudebaaskraal
and went on to state (at 56F-J) the following:
In the present matter the
appeal is against a judgment in motion proceedings and the appeal
record consists of eight volumes. The
Oudebaaskraal
case and
the present appeal are not comparable at all.
In the
Grobelarsdalse
Stadsraad
case,
supra
, Olivier JA said the following at
1143A-C:
‘
Die
bedoeling van art 21A van die Wet op die Hooggeregshof is
klaarblyklik om die drukkende werkslas van Howe van appel te verlig.
Appêlle behoort slegs vir beregting neergelê te word as
daar ‘n werklike, praktiese uitwerking of gevolg van
‘n
uitspraak van die Hof van appêl sal wees. Praktisyns behoort
dus geurgaans die doel van art 21A voor oë te
hou; in die
besonder by ‘n aansoek om na ‘n hoër Hof te
appelleer en by die voortsetting, voorbereiding en beredenering
van
die appêl.’
In the
Rotek
case,
supra
, at 63H-I the following appears (at para [26]):
‘
The
present case is a good example of this Court’s experience in
the recent past, including unreported cases, that there is
a growing
misperception that there has been a relaxation or dilution of the
fundamental principle spelt out in the
Grobelardalse
Stadsraad
case,
above, namely that Courts will not make determinations that will have
no practical effect.’
These statements by this
Court continue to be ignored.
These remarks are apposite in the
present matter. So too is the approach set out in
Logistic
Technologies (Pty) Ltd v Coetzee and Others
[1998] 1 All SA 377
(W) where Cloete J said that:
‘
The
result of the amendment to
s21A
, in my view, is that unless an
applicant applying for leave to appeal against a costs order only can
satisfy the court
a
quo
that an appeal court may reasonably find that exceptional
circumstances exist, leave to appeal should be refused; and in
determining
this question, the approach laid down by the Appellate
Division in such matters remains relevant in that a failure to
exercise
a judicial discretion would (at least usually) constitute an
exceptional circumstance – but conversely, - the mere fact that
an appeal court might, or even probably would, give a different
order, would not.’
The circumstances of this matter do
not present as being exceptional. Certainly no grounds are advanced
in the application for
leave which suggest that the matter is indeed
exceptional and that on such basis
section 16(2)(a)
would not find
application.
I am not persuaded, in any event,
that the grounds upon which leave to appeal the costs order of 19
March 2013 are sought establish
a reasonable prospect that another
court may come to a different conclusion or that there is any
prospect that the discretionary
costs order is likely to be altered
on appeal. It follows therefore that leave to appeal against the
order of 19 March 2013,
in respect of costs, must be refused.
I turn now to the application for
leave to appeal against the judgment of 1 August 2013. There are two
aspects to be considered,
namely the findings in respect of s44 of
the Land Use Planning Ordinance, 1985 (hereafter LUPO) and the
findings concerning the
interdict pending the main review
application.
The grounds upon which leave is
sought in respect of s44 of LUPO comprise essentially two
categories. On the one hand it is submitted
that this court erred in
interpreting s44 of LUPO to exclude a right of appeal against the
granting of a consent use application.
On the other it is submitted
that the court erred in finding that a consent use does not
constitute a departure as defined by
LUPO.
In respect of the latter set of
grounds there is, in my view, no reasonable prospect that another
court will come to a different
conclusion. It was submitted that the
court erred in failing to find that the ‘administrative
action’ of the Mayor
or second respondent remains valid until
set aside. It is indeed so that the judgment does not address this
aspect. That is so
because it is irrelevant to the basis upon which
the applicants sought an interdict. It was not the applicants’
case that
the notification either established a right of appeal or
precluded the second respondent from denying the existence of such
right.
The judgment records at paragraph 7 that it was conceded that
the fact that the second respondent had notified the applicants of
a
right of appeal did not accord them such right. No issue was taken
with this aspect of the judgment. It is difficult to conceive
on
what basis it is therefore suggested that this can establish some
reasonable prospect of success on appeal.
Insofar as the interpretation of what
constitutes a departure is concerned, the judgment sets out the
provisions of LUPO in some
detail. I need not repeat those here. It
suffices to say that the findings in the judgment are based upon the
clear and unequivocal
language of LUPO and I do not consider that
another court will come to a different exposition of those
provisions. I may mention
that some of the grounds advanced in this
regard appear to be based on a wholly incorrect understanding of the
terms of the judgment
and the provisions of LUPO set out therein. It
is for example contended that I erred in finding that a departure as
defined concerns
land uses for which no provision is made in the
scheme regulations. Quite what the error may be is unclear when
regard is had
to s15(1)(a)(ii) of LUPO which provides for the
utilisation of land “..for a purpose for which no provision
has been made
in the said regulations in a particular zone”.
The primary basis upon which leave is
sought is founded upon this court’s interpretation of s44 of
LUPO. It is of course
so that the nature and extent of the appeal
for which s44 makes provision has not, as far as I am aware, enjoyed
consideration
other than in this matter. That, of course, does not
mean that it is a matter which warrants being considered on appeal.
It must
be established that there are reasonable prospects of
success on appeal.
In advancing the argument there are
indeed such prospects, Mr van der Linde referred to a recent
judgement by Davis J in
Habitat Council and Another v Provincial
Minister of Local Government, Environmental Affairs and Development
Planning in the Western
Cape and Others; City of Cape Town v
Provincial Minister of Local Government, Environmental Affairs and
Development Planning
in the Western Cape and Others
(6227/2013;
23016/2013)
[2013] ZAWCHC 112
(14 August 2013). In that matter Davis
J was concerned with a challenge to the constitutionality of s44 of
LUPO. The applicants
sought an order declaring s44 to be invalid
‘insofar as it allowed [the Minister] to finally determine
municipal planning
applications falling within the functional
competence of [the City] as a local government’. Mr van der
Linde conceded that
the issue before Davis J had no bearing upon the
matters considered in the judgment in this matter. He pointed out
that his reliance
on the
Habitat
judgment was confined to a
passage which appears to recognise that an appeal against the
refusal of a special consent application
does lie in terms of s44 of
LUPO.
This passage reads as follows:
‘
At
the meeting on the 13
th
of April 2011, SPELUM refused to grant the requested special consent.
This decision triggered an appeal by the trust against this
decision,
in terms of section 44 of LUPO, to the Western Cape Provincial
Government, represented, as it was, by the first respondent.’
A reading of the judgment makes it
clear that the court in that matter was not called upon to and did
not consider the question
whether s44 of LUPO confers upon an
applicant for special consent a right of appeal. That was not in
issue. It appears that the
parties accepted that this is so.
The passage upon which Mr van der
Linde relied does not constitute a judicial pronouncement upon the
right of appeal. It is even
doubtful that it constitutes anything
more than a recording of relevant facts as they pertain to that
matter. Accordingly the
judgment in the
Habitat
matter is not
authority for the proposition that such right of appeal exists. It
should be mentioned here that it is in any event
apparent from the
judgment that although LUPO also applies in the Western Cape, it is
by no means certain that all of the provisions
of LUPO are identical
to those that find application in this province. That is so because,
as Davis J records in the judgment,
the Western Cape Parliament has
amended section 44 of LUPO most recently in terms of the Western
Cape LUPO Second Amendment Act
3 of 2011. It is also apparent from
the judgment that the particular ‘special consent’ dealt
with in that matter
is regulated by the scheme regulations
applicable to the City of Cape Town. Whether those regulations
provide for a right of
appeal is unknown.
In considering the several grounds
upon which the applicants seek leave to appeal I am unable to
conclude that there is any reasonable
prospect of success on appeal.
Accordingly in respect of this aspect of the judgment leave to
appeal must be refused.
I turn now to the grounds advanced in
respect of the establishment of the requisites for an interdict
pending the judicial review
application.
Here too the applicants appear to
have misconstrued the judgment. The essential basis upon which the
interdict was refused was
that the applicants had failed to
establish a balance of convenience in their favour. I need not
reiterate the basis upon which
that finding was made. It suffices to
state that the evidence presented by the respondents at the stage
when the interdict application
was considered established an
overwhelming balance against the granting of the interdict. In my
opinion another court will not
come to different conclusion. A great
deal of the construction work had already been completed at the time
that the application
was heard. A very considerable amount of money
had already been expended in the development. These aspects were not
addressed
by the applicants in any significant manner, if at all.
Nor was any substantive basis advanced in this application to
suggest
that the judgment was founded upon error or misdirection.
There is of course the further aspect
which concerns the practical effect of the order sought on appeal.
The interdict was sought pending the
final determination of the review application and, if successful,
any appeals which may flow
from the judgment. The review application
was very recently fully argued before me and judgment in that matter
was reserved.
Mr van der Linde accepted that I cannot be expected to
disabuse my mind of the prospects of success in the review
application.
To the contrary, as I understood it, it was suggested
that I must indeed have regard to such prospects.
Mr Ford argued that no basis is laid
in the application for leave to appeal to justify granting such
leave. He further submitted
that the order sought on appeal could
have no practical effect whatsoever since a judgment against the
applicants in the review
would render the appeal of mere academic
significance. I agree. He further argued that in any event the facts
in the main review
application disclose that the wind farm facility
will be commercially operational by February 2014. Thus, even if
leave were
to be granted (and it was assumed in favour of the
applicants that the review would be successful) it is doubtful that
any appeal
would be heard at a stage before the wind farm facility
was fully operational. This would have the effect of rendering the
entire
appeal exercise moot. I agree.
It follows from what is set out above
that I do not consider that the applicants enjoy a reasonable
prospect of success on appeal.
I am also of the opinion that the
matter, at least in respect of the costs order of 19 March and the
refusal of the interdict
pending the review on 1 August 2013, falls
within the ambit of
section 16
(2) (a) of the
Superior Courts Act
and
that, on this basis too, leave to appeal must be refused.
I make the following order:
The application for leave to appeal is
refused with costs, such costs, in the case of the Third and Fourth
Respondents, to include
the costs of two counsel.
G. GOOSEN
JUDGE OF THE HIGH COURT
Appearances: For the Applicants
Mr. H. J. van der Linde SC
Instructed by Wilke Weiss van Rooyen
For the Second Respondent
Mr. R. G. Buchanan SC
Instructed by Gray Moodliar Attorneys
For the Third and Fourth Respondents
Mr. E.A.S. Ford SC assisted by Mr. J.
G. Richards
Instructed by Rushmere Noach
Incorporated
1
Proclamation
Notice R36, 2013 (Government Gazette 36744, 22 August 2013).
2
Section
52 of the Act provides for pending proceedings as follows:
Subject
to section 27, proceedings pending in any court at the commencement
of this Act, must be continued and concluded as
if this Act had not
been passed.
Proceedings
must, for the purposes of this section, be deemed to be pending if,
at the commencement of this Act, a summons had
been issued but
judgment had not been passed.
In this instance the
proceedings under case number 224/2013 were finally concluded upon
judgment having been delivered on 1 August
2013.