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2023
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[2023] ZAECQBHC 55
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Chartro Properties 9 (Pty) Ltd v Marina Martinique Home Owner's Association and Others (3563/2021) [2023] ZAECQBHC 55 (26 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO: 3563/2021
In
the matter between:
CHARTRO
PROPERTIES 9 (PTY) LTD
Applicant
And
MARINA
MARTINIQUE HOME OWNERS
First
Respondent
ASSOCIATION
RICHOIL
INVESTMENTS 8 (PTY) LTD
Second
Respondent
(IN
LIQUIDATION)
THE
BODY CORPORATE OF ARUBA BREEZE
Third
Respondent
(SECTIONAL
TITLE SCHEME 403/2007)
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
JUDGMENT
NONCEMBU
J
[1]
The applicant, in its amended notice of motion, is seeking relief on
the following terms:
“
1.
That it be declared that the First Respondent consented to the
Applicant effectively consolidating (through whatever means
necessary)
part of the current Erf 1310 and part of current remainder
of Erf 1021, after the moving of the road from the South Eastern
border
to its North Eastern border, with Erf 1315, to enable the
Applicant to construct parking bays thereon for use by the Sectional
Title owners in the Aruba Breeze Sectional Title Complex;
2. That it be declared
that the First Respondent’s cancellation on 28 April 2015 of
the First Respondent’s consent given
to the Applicant in
respect of the consolidation of Erven 1310 and 1315 Aston Bay, Kouga
Municipality, is unlawful, is null and
void;
3. By declaring that
the consent of the First Respondent as described above is extant,
valid and binding and that such prohibits
the First Respondent from
taking any steps to impede and/or frustrate the process to achieve
such;
4. The First
Respondent be ordered not to levy any separate levies in respect of
Erf 1310, Aston Bay, Kouga Municipality;
5. That the First
Respondent be ordered to take all reasonable steps to assist the
Applicant in consolidating Erf 1310 and 1315,
Aston Bay, Kouga
Municipality, or to have same notarially linked;
6. That the First
Respondent be ordered to pay the costs of this application.”
[2]
I deem it apposite, as a point of departure, to look into the history
of the matter to give proper
context to the application, which is
highly opposed by the first respondent.
[3]
The application was first launched in December 2021 by the applicant
where it sought relief in
terms of the prayers 1 to 3 as contained in
the original notice of motion.
[1]
The first respondent, in opposing the matter, delivered its answering
affidavit on 11 March 2022. The applicant delivered a replying
affidavit on 14 April 2022, thereafter took no steps to bring the
matter to finality by applying for a date of hearing.
[4]
Seeing no movement on the part of the applicant, the first respondent
ultimately had the matter set
down for hearing, initially on 13 April
2023 and by agreement moved to 20 April 2023. On 27 March 2023 the
applicant delivered
a notice of its intention to amend the notice of
motion. This amendment, though not strongly opposed, was not by
agreement, but
the matter was argued on the basis of both the amended
and the original notice of motion, in anticipation of the envisaged
amendment.
THE FACTUAL BACKGROUND
[5]
The facts of the matter are largely common cause. The first
respondent is the Marina Martinique Home
owners association NPC, a
home owner’s association with its primary object being ‘to
represent the interests of its
members as a collective and to do all
things necessary to preserve, maintain, improve, and protect the
Marina in the interest of
its members and in so doing to undertake
the proper management of the association.’
[2]
[6]
The objects and powers of the first respondent are contained within
its Memorandum of Incorporation
and include under clause 4.2.3, the
power to manage all services forming part of the Marina Martinique,
including roads.
[3]
[7]
The Marina Martinique is a development which was established as a
separate township (the Marina) by
the subdivision of the original Erf
856 Aston Bay. It constitutes a cluster housing scheme arranged
around canals.
[4]
The individual
cadastral erven within the Marina were uniformly zoned for single
residential purposes except for the area that
was rezoned for
sectional title apartments. When the subdivision establishing the
Marina was given effect to by the initial transfer
of individual
erven to buyers; the roads, open spaces and canals were transferred
to Kouga municipality. It was however, a condition
of the approval of
the subdivision establishing the Marina that initially the developer
and thereafter the first respondent would
be responsible for
constructing and maintaining them.
[5]
[8]
The applicant was the developer of Aruba, such development being erf
1315 and situated in Marina
Martinique.
[6]
During 2005 the applicant became the registered owner of erf 1310
situate at the Marina Martinique.
[7]
The intention of the applicant was to incorporate erf 1310 into erf
1315 with the ultimate goal that erf 1310 would become part
of Aruba
and carports would be built thereon which would, after the
consolidation of the erven, serve the sectional title units
on erf
1315.
[9]
As erf 1310 and 1315 were not contiguous to each other, as they were
separated by a road, the
planned incorporation of erf 1310 for the
purpose of constructing carports for use in Aruba would require a
series of sub-divisions
and rezoning’s primarily due to the
fact that the road portion, and all roads in the Marina Martinique,
were constituted
as erf 1021 and owned by Kouga Municipality.
[8]
[10]
This meant that, from a practical viewpoint, to give effect to the
applicant’s intended development
of erf 1310 to supplement and
serve Aruba, the portion of the road (a portion of erf 1021) would
have to be moved from its current
position between the boundaries of
erven 1310 and 1315 on the South Eastern edge of erf 1310, to its
North Eastern edge.
[9]
[11]
The applicant submitted an application for the rezoning and
subdivision of the affected erven and same was
formally approved by
the first respondent on 26 July 2005. Various approvals were also
obtained for the rezoning and subdivision
as required by the Land Use
Planning Ordinance, 1985 (LUPO).
[12]
Whilst the above was underway, in April 2008 the first respondent
issued summons in the magistrates’
court in Humansdorp against
the applicant in respect of certain service charges and levies
pertaining to erf 1310. This action
was defended by the applicant on
the basis that the first responded had consented to the consolidation
of the erven 1310 and 1315
and furthermore, that the first respondent
was in fact recovering service charges and levies as if the erven had
already been consolidated.
[13]
This action became part of a settlement in a subsequent High Court
action between the first and the second
respondents. A settlement
agreement incorporating both actions was made an order of court on
the following terms
[10]
:
“
IT IS
ORDERED (by agreement)
1.
That
the Defendant [Richoil] pay to the Plaintiff [first respondent] the
sum of R 250 000 which amount is payable within 7 days
of the date of
this order whereafter interest shall accrue at the prevailing
prescribed legal rate until date of payment.
2.
That
in respect of erf 1428 the Defendant [Richoil] as from 1September
2011, pay the normal levies associated with a single residential
erf.
3.
That
in respect of erf 914 the Defendant [Richoil] shall:
3.1
pay
levies from 1 September 2011 on the basis of the levies and
availability fee payable in respect of the two units on a general
residential erf, for a period of 2 years or until the Defendant
[Richoil] submit its development plans to the Plaintiff [respondent],
whereafter levies will be calculated in accordance with the proposed
development.
3.2
After
the aforementioned period of 2 years if the Defendant [Richoil] has
not completed its development, the Defendant [Richoil]
will
thereafter pay levies on the basis of a development comprising 4
units together with the availability fee, and will continue
to do so
until it submits its development plans to the Plaintiff [respondent],
whereafter the levies will be calculated on the
basis of the actual
units to be developed.
4.
That
it is recorded further that in the Magistrate’s Court matter
between the Plaintiff [first respondent] and Chartpro Prop
9(Pty) Ltd
[the applicant,] being case no. 272/08 in the Magistrates Court,
Humansdorp the parties are agreed that the aforesaid
payment of R250
000 includes payment in respect of that matter and that matter too is
hereby settled.
5.
That
in respect of erven 1310 and 1315 the parties agree that these erven
have been consolidated and will in future be treated as
such with no
separate levies applicable to the individual erven.
6.
That
it is recorded by the parties that G Olivier, the representative of
the Plaintiff herein, is also authorised to represent Chartpro
Prop 9
(Pty) Ltd [the applicant] herein and agrees to this order as an
authorised representative of both the Plaintiff and Chartpro
Prop 9
(Pty) Ltd [the applicant].
7.
That
the Defendant [Richoil] pay the Plaintiff’s[first respondent’s]
costs of suit in this matter on the High Court
scale as taxed or
agreed and the Plaintiff’s[first respondents] costs in the
Chatpro Magistrates’ Court matter on the
appropriate
Magistrates’ Court scale as taxed or agreed.”
[15] It
is the applicant’s further contention that an implied / tacit
term of the order was that:
15.1 The first respondent
would do all that is necessary to assist the applicant in whatever
was required to have erven 1310 and
1315 consolidated; and
15.2
That the treatment of the said erven as effectively consolidated
erven by the first respondent entailed that nothing would
be done
which would hamper the applicant’s rights to have them
effectively consolidated.”
[11]
[16]
In a period of over a year later, on 18 October 2012, the first
respondent’s attorneys addressed correspondence
to the then
applicant’s attorneys, wherein the applicant was put on terms;
inter
alia
,
to submit a progress report on the status of the consolidation
application within 7 days, failing which the first respondent would
cancel the agreement granting consent to the consolidation.
[12]
[17] In
response to the above correspondence, the applicant’s attorneys
informed the first respondent’s
attorneys that they were ‘
now
proceeding with the consolidation and are attending to the signature
of the relevant documents’
. Of noteworthy, is the fact that
from the latter part of 2010 the first respondent was represented by
Mr Heunis who is also the
deponent to the answering affidavit.
[18]
On 27 October 2014 the first respondent’s attorneys addressed
another letter to the applicant’s
attorneys once again putting
the applicant on terms similar to the letter sent in October 2012.
The only difference between this
letter and the 2012 one being that
the 2014 letter referred to the agreement granting consent as having
been entered into 3 years
ago. According to the applicant this
coincided with the time period within which the High Court order was
granted.
[19]
With no response to the above correspondence received from the
applicant, the first respondent purported
to cancel the agreement on
28 April 2015, making reference to the October 2014 letter.
[20]
Subsequent to the purported cancellation, the first respondent
proceeded to construct a service road on the
portion between erf 1310
and 1315. It is the applicant’s contention that this affected
the consolidation process.
[21]
On 3 July 2015 the applicant’s attorneys addressed
correspondence to the first respondent indicating
that the
consolidation process originally envisaged could not have proceeded
and that the process would have had to follow that
of a notarial tie
in due course. This requirement (of a notarial tie) had been
communicated to Heunis before the High Court order
dated 5 September
2011.
[22]
On 15 June 2017, the applicant’s then attorneys wrote to the
first respondent submitting that the construction
of the road as well
as the purported cancellation were unlawful.
[23]
On 16 July 2020 the first respondent contended that the applicant was
in arrears with payments for levies
relating to erf 1310, and
subsequently, issued summons for payment of such levies.
THE
APPLICANT’S CASE
[24]
As can be gleaned from the founding affidavit, and as it crystallised
in argument at the hearing, the applicant’s
case is that the
first respondent unconditionally consented to the effective
consolidation of the aforementioned erven, which consent
was made an
order of court in terms of the settlement agreement on 5 September
2011. Furthermore, the applicant contends that in
terms of the
aforementioned court order, the first respondent agreed not to
service separate levies in respect of erf 1310 as the
two erven would
in future be treated as consolidated, thus indicating that
consolidation had not taken place at the time.
[25]
The applicant contends further, that implicit in the above order, the
first respondent agreed to do whatever
is necessary to assist the
applicant in ensuring the aforementioned consolidation, including a
notarial tie, and not to do anything
to interfere with the said
consolidation.
[26]
Based on the above, it is the applicant’s contention that the
first respondent’s cancellation
of its consent is therefore
unlawful, null and void. This, the argument goes, remains the
position as the court order still stands
and is binding until set
aside by a competent court of law.
[27]
On the other hand, the case advanced by the first respondent in reply
is that the consent was conditional
and that the applicant having
failed to comply with such conditions, specifically, the requirements
as provided for in terms of
LUPO,
[13]
the
consent lapsed in 2010, 5 years after it was given. The first
respondent contends thus, that the cancellation was superfluous
as
the consent had already lapsed by that time.
[28]
As regards the agreement contained in the court order, the first
respondent argues that it was synallagmatic,
and with no payment
having been received from or on the part of the applicant in terms
thereof, it is not open to the applicant
to seek to enforce the first
respondent’s contended obligations in terms thereof. With no
payment having been received in
terms of the applicant’s
obligations in terms of the agreement, the argument goes, paragraph 5
of the court order could not
be triggered.
[29]
As a further ground for the opposition of the applicant’s case,
the first respondent also raised the
non-joinder of the Kouga
municipality. It is contended in this regard, that the grant of the
order sought will have a direct impact
on the basis upon which the
applicant will implement the consolidation, in particular, the
requirement to move the road, and accordingly
the interests of the
municipality (as the owner of the roads). The submission therefore is
that the municipality has a direct and
substantial interest in the
relief sought by the applicant, as such, the court cannot hear the
matter in its absence. I deal with
this later in the judgment.
THE
ISSUES FOR DETERMINATION
[30]
In my view, whilst the triable issues are centred around whether or
not the first respondent gave an unconditional
consent to the
applicant for the consolidation of the aforementioned erven; and
whether or not such consent is valid and extant,
the crux of the
matter turns on the interpretation to be accorded to the court order
of 5 September 2011. This is also what triggered
the amended relief
as sought in the amended notice of motion.
[31]
Furthermore, this court is also required to make a determination on
whether or not the non-joinder of the
municipality is dispositive to
the case of the applicant.
INTERPRETATION
OF THE COURT ORDER
[32]
The applicant has referred this court to a plethora of cases
pertaining to the interpretation of the court
order.
[33]
As a starting point, it is apposite to look at the current position
of our law as has become settled in this
regard. This was set out as
follows in
Natal
Joint Municipal Pension Fund v Endumeni
:
[14]
“
Interpretation
is the process of attributing meaning to the words used in a
document, albeit legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions and the like of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all the
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for words
actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation; in a contractual context it is to make a contract for
the parties other than the one they in fact
made. The inevitable
point of departure is the language of the provision itself, read in
context and having regard to the purpose
of the provision and the
background to the preparation and production of the document.”
[34]
This was expounded upon by Wallis JA when he stated:
[15]
“
Whilst
the starting point remains the words of the document, which are the
only relevant medium through which the parties have expressed
their
contractual intentions, the process of interpretation does not stop
at the perceived literal meaning of those words, but
considers them
in the light of all relevant admissible context, including the
circumstances in which the document came into being.
The former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages but is ‘essentially
one unitary exercise’.”
[35]
Wallis JA also stated:
[16]
“
In the past,
where there was perceived ambiguity in a contract, the courts held
that the subsequent conduct of the parties in implementing
their
agreement was a factor that could be taken into account in preferring
one interpretation to another.
[17]
Now that regard is had
to all relevant context, irrespective of whether there is a perceived
ambiguity,
[18]
there is no reason not
to look at the conduct of the parties in implementing the agreement.
Where it is clear that they have both
taken the same approach to its
implementation, and hence the meaning of the provision in dispute,
their conduct provides clear
evidence of how reasonable business
people situated as they were and knowing what they knew, would
construe the disputed provision.
It is therefore relevant to an
objective determination of the meaning of the words they have used
and the selection of the appropriate
meaning from among those
postulated by the parties.”
[36]
It was also noted in the applicant’s heads of argument that our
courts have emphasized that contracts
are to be interpreted “…
in
accordance with sound commercial principles and good business sense
so that it receives sensible application”
.
[19]
[37] A
further submission in the applicant’s heads was that in
commencing at the “
starting point
”, namely the
words of the contract, a court must bear in mind that:
“
It
is a good and sound general rule in jurisprudence that one who reads
a legal document, whether public or private, should not
be prompt to
ascribe – should not, without necessity or some sound reason,
impute – to his language tautology or superfluity
and should be
rather at the outset inclined to suppose every word intended to have
some effect or be of some use.”
[20]
[38]
This position was reaffirmed by Unterhalter AJA in
Capitec
Bank Holdings Limited v Coral Lagoon Investments 194 (Pty) Ltd &
Others
[21]
,
where he said:
“
Our
analysis must commence with the provisions of the subscription
agreement that have relevance for deciding whether Capitec Holdings’
consent was indeed required. The much-cited passages from Natal Joint
Municipal Pension Fund v Endumeni Municipality (Endumeni)
offer
guidance as to how to approach the interpretation of the words used
in a document. It is the language used, understood in
the context in
which it is used, and having regard to the purpose of the provision
that constitutes the unitary exercise of interpretation.
I would only
add that the triad of text, context and purpose should not be used in
a mechanical fashion. It is the relationship
between the words used,
the concepts expressed by those words and the place of the contested
provision within the scheme of the
agreement (or instrument) as a
whole that constitutes the enterprise by recourse to which a coherent
and salient interpretation
is determined as Endumeni emphasized,
citing well-known cases, ‘[t]he inevitable point of departure
is the language of the
provision itself.”
[39]
With regards to court orders, the Constitutional Court added to the
aforegoing in
Eke
v Parsons
[22]
where the court stated:
“
[29]
Once a settlement agreement has been made an order of court, it is an
order like any other.
It will be interpreted like all court
orders. Here is the well-established test on the interpretation
of court orders:
“
The starting
point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court’s
intention is to
be ascertained primarily from the language of the judgment or order
in accordance with the usual well-known rules
relating to the
interpretation of documents. As in the case of a document, the
judgment or order and the court’s reasons
for giving it must be
read as a whole in order to ascertain its intention.”
[23]
[30]
This is equally true of court orders following on settlement
agreements, of course with a slant that is specific
to orders of this
nature:
‘
The Court order
in this case records an agreement of settlement and the basic
principles of the interpretation of contracts need
therefore be
applied to ascertain the meaning of the agreement. . .
The intention of the
parties is ascertained from the language used read in its contextual
setting and in the light of admissible
evidence. There are
three classes of admissible evidence. Evidence of background
facts is always admissible.
These facts, matters probably
present in the mind of the parties when they contracted, are part of
the context and explain the
‘genesis of the transaction’
or its ‘factual matrix’. Its aim is to put the
Court ‘in the armchair
of the author(s)’ of the
document. Evidence of ‘surrounding circumstances’
is admissible only if a contextual
interpretation fails to clear up
an ambiguity or uncertainty. Evidence of what passed between
the parties during the negotiations
that preceded the conclusion of
the agreement is admissible only in the case where evidence of the
surrounding circumstances does
not provide ‘sufficient
certainty’.”
[24]
[40]
Having due regard to the background above, it is the applicant’s
submission that the underlying dispute
between the applicant and the
first respondent that preceded the court order related to the payment
of separate levies in respect
of erven 1315 and 1310, which aspect
formed a part of the consent to the ‘consolidation’ and
governed the consequences
of such consent. I do not think that such
can be gainsaid.
[41] It
is the further argument of the applicant that the reference in
paragraph 5 of the court order to the erven
having been consolidated,
was not intended to refer to an actual consolidation, but rather to
an agreement to consolidate them.
This, it is said, is underscored by
the fact that the order specifically records that the erven ‘will
in future be treated
as [consolidated] with no separate levies
applicable to the individual erven.’
[42] It
was further argued on behalf of the applicant that the reference to
individual erven and to the future
treatment thereof as being
consolidated, as well as the correspondence that was exchanged
between the parties subsequently where
it was clear that all parties
were aware that no actual consolidation had occurred, as well as from
the events set out in the answering
affidavit by Heunis, supports a
construction that the parties in fact were recording the first
respondent’s agreement to
the planned consolidation, which both
parties at that stage knew involved a notarial tie.
[43]
The submission here was that the existence and validity of the
consent at the time when the court order was
agreed, was a
sine
qua non
to settling the dispute concerning the payment of
separate levies. That on a proper interpretation of the court order
considering
all relevant material available as per the approach to
the interpretation of court orders, that the court order either
affirmed
and/or constituted a recordial of the consent and /or
agreement of the first respondent to the effective consolidation of
the relevant
erven for the purposes described.
[44]
In conclusion in this regard, the applicant submitted that it cannot
be gainsaid, at the very least, that
the court order unequivocally
records the rights and obligations of the parties insofar as the
raising of separate levies on the
erven is concerned, and that the
first respondent does not have an entitlement to charge separate
levies in respect of erf 1310
for so long as the court order remains.
[45]
On the latter, I cannot perceive of any other possible interpretation
to be ascribed to the court order,
given the status thereof as was
well articulated in
Eke v Parsons
referred to
supra
. I
fail to see how it can be gainsaid that the manifest purpose of the
order (as a starting point), discernible from the language
used in
the order itself, was to regulate the future conduct of the parties
in respect of the raising of separate levies for the
relevant erven.
[46]
In fact, the first respondent did not attempt to gainsay the above
argument, but argued that the agreement
contained in the order was
synallagmatic, and given that the payment of R250 000 which included
the amount due by the applicant
in outstanding levies, was never
received, the obligations contained therein on the part of the first
respondent were never triggered.
[47]
This argument however, is flawed and cannot be sustained. ‘The
effect of a settlement order is to change
the status of the rights
and obligations between the parties. Save for litigation that
may be consequent upon the nature
of the particular order, the order
brings finality to the
lis
between the parties; the
lis
becomes
res
judicata
(literally,
“a matter judged”).
[25]
It changes the terms of a settlement agreement to an enforceable
court order. The type of enforcement may be execution
or
contempt proceedings. Or it may take any other form permitted
by the nature of the order.
[26]
[48]
The language used in the order and the surrounding circumstances make
it very clear that the first respondent
accepted that the court order
settled the underlying dispute between the parties which, as its
origin, emanated from outstanding
levies. The agreement and the
subsequent court order resolved the issue of outstanding levies,
which was closely tied to the raising
of separate levies for the
relevant erven. This aspect therefore became
res judicata
,
there was thereafter no
lis
between the parties in this
regard.
[49]
This is further fortified by the fact that when no payment was
forthcoming from the second respondent in
terms of the court order,
the first respondent took steps against the second respondent to
enforce payment in terms of the order.
It is that enforcement process
that culminated in an application for the liquidation and the
ultimate liquidation of the second
respondent.
[50]
For the first respondent to now argue that its obligations in terms
of the court order were never triggered
is both fallacious and
untenable.
[51]
With regards to the interpretation of the court order as contended by
the applicant, the argument on behalf of
the first respondent is that
its representatives, specifically, Heunis, took the applicant’s
assertion that the consolidation
had been given effect to at face
value and assumed its correctness in agreeing that separate levies
would not be raised.
[52]
The subsequent conduct of the parties however, seem to indicate
otherwise.
What is demonstrable from their conduct is that the
parties took the same approach with regards to the contended for
interpretation
of the court order regarding the consolidation, ie.
(that the erven would in future be consolidated). In addition to the
actual
wording of the order which states that in future the erven
will be treated as consolidated with no separate levies applicable to
the individual erven, subsequent correspondence from the first
respondent’s attorneys seem to affirm this interpretation.
[53]
In the letters dated 18 October 2012 and 24 October 2014 from the
first
respondent’s attorneys, as well as the response thereto
from the applicant, it is patently clear that the first respondent
was aware that consolidation had not taken place at the time of the
court order, hence the applicant was put on terms to finalise
same.
The subsequent conduct of the first respondent therefore does not
support the contention that it was under the belief that
consolidation had taken effect at the time of the order. This is
further supported by the fact that it is not disputed by the first
respondent that Heunis (its representative) had been made aware
before the court order, of the fact that a notarial tie would be
needed.
[54]
In the circumstances therefore, I can find no other possible
interpretation
to be ascribed to the court order than that asserted
to by the applicant. In the premise therefore, I find that the court
order
either affirmed and/or constituted a recordial of the consent
and /or agreement of the first respondent to the effective
consolidation
of the relevant erven for the purposes described.
[55]
Court orders granted by a competent court, including the making of
settlement
agreements into orders of court, are binding until set
aside by a competent court.
[27]
The court order in
casu
was never set aside or
rescinded, as such remains extant, valid and binding.
[56]
The first respondent’s contentions on consent having lapsed
seem
to conflate the approvals by the municipality, which pertain to
the subdivision and the rezoning of the erven in question, and
therefore subject to the provisions of LUPO, with the relief being
sought by the applicant which pertains to the first respondent’s
consent to consolidation and the treatment of the relevant erven as
consolidated. These are two distinct aspects. That this is
the case
is also apparent from the answering affidavit deposed to by Heunis
where he states at paragraph 21 ‘…In providing
its
consent to the application for subdivision and rezoning,
the First
Respondent’s Board also consented to the aforesaid
consolidations (although it was not necessary for the Applicant
to
obtain the municipality’s approval therefor)’
(Emphasis
intended). The latter consent, which Heunis categorically states did
not require the approval of the municipality, is
what constitutes the
applicant’s cause of action in the matter.
NON-JOINDER
OF THE KOUGA MUNICIPALITY
[57]
On a similar vein, far from it being a dilatory defence, the issue of
non-joinder does not arise as the relief
sought by the applicant
relates to the consent of the first respondent to consolidation and
the issue of separate levies being
raised. It does not relate to any
aspect which concerns the subdivision and rezoning as that is a
separate aspect that the applicant
would have to deal with as and
when it becomes necessary. At this stage therefore, the interests of
Kouga Municipality are not
affected.
[58]
having conclusively decided the issue of the interpretation to be
ascribed to the court order, I therefore
do not find it necessary for
me to deal with the issue of the implied terms of the order. Suffice
it to say that, having found
that a valid consent to consolidation
exists, which consent was affirmed and/or recorded in the court order
in terms of the settlement
agreement, it follows therefore, and
implicit therein that the first respondent would be obligated not to
do anything to frustrate
such a process. I am however not convinced
that such extends to a positive obligation on the part of the first
respondent in ensuring
that such consolidation is effected.
CONCLUSION
[59]
As earlier indicated, the matter was argued on the basis of the
amended notice of motion by both parties.
Furthermore, given that the
first respondent shifted its reliance on the cancellation of its
consent in its answering papers, to
the lapsing thereof, it therefore
became necessary for the applicant to amend its notice of motion.
There is therefore no reason
why the application for the amendment of
the notice of motion should not be granted.
ORDER
[60] In
the premise, I make the following orders:
(a)
The application for the amendment of the
notice of motion is hereby granted
.
(b)
It
is
declared that the first respondent consented to the
applicant effectively consolidating (through whatever means
necessary) part
of the current Erf 1310 and part of current remainder
of Erf 1021, after the moving of the road from the South Eastern
border to
its North Eastern border, with Erf 1315, to enable the
applicant to construct parking bays thereon for use by the Sectional
Title
owners in the Aruba Breeze Sectional Title Complex;
(c)
It is further declared that the first respondent’s
cancellation on 28 April 2015 of the first respondent’s consent
given
to the Applicant in respect of the consolidation of Erven 1310
and 1315 Aston Bay, Kouga Municipality, is unlawful, is null and
void;
(d)
It is further declared that the consent of the first
respondent as described above is extant, valid and binding and that
such prohibits
the first respondent from taking any steps to impede
and/or frustrate the process to achieve such;
(e)
The first respondent is ordered not to levy any separate
levies in respect of Erf 1310, Aston Bay, Kouga Municipality;
(f)
The first respondent is ordered to pay the costs of this
application.
V P NONCEMBU
JUDGE
OF THE HIGH COURT
APPEARANCES
Counsel
for the applicant
: Adv
J Nepgen
Instructed
by
: Lex
Icon Attorneys
Gqeberha
Counsel
for the first respondent
: Adv
J Richards
Instructed
by
:
Rushmere Noach Incorporated
Gqeberha
Date
of hearing
: 20
April 2023
Date
judgment delivered
: 26
September 2023
[1]
These mainly entailed prayers 2, 4 and 5 as re-numbered in the
amended notice of motion.
[2]
Record:
p 13 para 5, et al.
[3]
Record:
p 158, Annexure “AA1”.
[4]
Record:
p 122, para 5 AA.
[5]
Record: p 122, para 6 AA
[6]
After
having acquired a number of erven in the Marina, which included
erven 1306 to 1310 during the first half of 2005, the applicant
took
steps to establish the third respondent (The Body Corporate of Aruba
Breeze). To that end, on 19 September 2005, erven 1306
to 1309 were
consolidated as erf 1315 Aston Bay in terms of Consolidation Title
T75489/2005 (the CCT) in the name of the applicant.
On 21 June 2007
the CCT was endorsed to reflect that erf 1315 was subject to a
development scheme registered in a sectional title
register “which
land and building(s) are known as Aruba Breeze”.
[7]
Record: p 16, para 17 FA.
[8]
The
road in question had not yet been constructed at the time.
[9]
Record:
p 17, para 23 FA.
[10]
The
court order was dated 5 September 2011.
[11]
Record: p 23, paras 39 and 40 FA.
[12]
Record:
p 130, para 39 AA.
[13]
The Land Use Planning Ordinance, 1985, which was applicable at the
time (has since been repealed) and required,
inter
alia
,
that the sub-division and rezoning be confirmed within 5 years of
the approval, failing which such approval would be deemed
to have
lapsed.
[14]
2012
(4) SA 593
(SCA) at para 18.
[15]
In
Bothma-Batho
Transport (Edms) BPK v Bothma en Seun Transports (Edms) Bpk
2014
(2) SA 494
at para 12.
[16]
In
Comwezi
Security Services (Pty) Ltd & Another v Cape Empowerment Trust
Limited
(759/11)
[2012] ZASCA 126
(21 September 2012).
[17]
Shill v
Milner
1937
AD 101
at 110-111;
Shacklock
v Shacklock
1949
(1) SA 91
(A) at 101;
MTK
Saagmeule (Pty) Ltd v Killyman Estates (Pty) Ltd
1980 (3) SA 1
(A) at
12F-H. (759/2011)
[2012] ZASCA 126
(21 September 2012).
[18]
Formerly it was said that ‘background circumstances’
were always admissible to provide context, but ‘surrounding
circumstances’ could only be considered if there was
ambiguity. That distinction was swept away in
KPMG
Chartered Accountants (SA) v Securefin Ltd & another
2009
(4) SA 399
(SCA) para 39.
[19]
Hyprop
Investments v Shoprite Checkers
(315/10)
[2011] ZASCA 51
(30 March 2011) at para 12.
[20]
Portion
1 of 46 Wadeville (Pty) Ltd v Unity Cutlery (Pty) Ltd & Others
1984
(1) SA 61
(A) at 70 C – D.
[21]
2022 (1) SA 100
(SCA) at para 25.
[22]
2016
(3) SA 37
(CC);
2015 (11) BCLR 1319
(CC).
[23]
Making reference to
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
Others
[2012]
ZASCA 49
;
2013 (2) SA 204
(SCA) (
Finishing
Touch 163
)
at para 13. See also
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977
(4) SA 298 (A).
[24]
With reference to
Engelbrecht
and Another v Senwes Ltd
[2006]
ZASCA 138
;
2007 (3) SA 29
(SCA) at paras 6-7.
[25]
The principle is that generally parties may not again litigate on
the same matter once it has been determined on the merits.
[26]
Eke
v Parsons supra
,
at para [31].
[27]
Department
of Transport v Tasima
2017
(2) 622 (CC) paras 179 – 183;
Victoria
Park Rate Payers Association v Greyvenouw
CC
[2004] 3 All SA 623
(SE) para 23.