About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2021
>>
[2021] ZAKZDHC 9
|
|
Poledor Timveos v Ethekwini Municipality and others (D9680/2019) [2021] ZAKZDHC 9 (24 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION: DURBAN
CASE NO: D9680/2019
In the matter between:
POLEDOR
TIMVEOS
APPLICANT
and
ETHEKWINI
MUNICIPALITY
FIRST RESPONDENT
ZORTZIKO
(PTY) LIMITED
SECOND RESPONDENT
ALTAF
HASSAM AND NADIM HASSAM N.N.O.
THIRD RESPONDENT
(In their capacities as
the Executors of the estate
of the late MOHAMMED
ZUKERIA HASSAM)
SHAHIDA
BANOO HASSAM
FOURTH
RESPONDENT
ORDER
The
following order is granted: -
1.
To the extent necessary, in terms of
s 9
of
the
Promotion of Administrative Justice Act No 3 of 2000
, the period
in terms of
s 7(1)
of the said Act for the bringing of this
application for the relief in these proceedings is extended to the
commencement date of
this application.
2.
The decision of the first respondent taken
on 13 March 2015 to approve building plans number 1420215 in respect
of the immovable
property known as Portion 1 of Erf 2107 Durban is
reviewed and set aside.
3.
The first and second respondents are
directed to give notice to the applicant of any future application
for the approval of plans
for the development of Erf 2107 Durban (or
that Erf consolidated with any other immovable property), such notice
to be accompanied
by a full set of the plans submitted for approval,
and any representations made on behalf of the second respondent in
support of
such approval. The applicant shall be entitled to make
representations concerning the application for the approval of such
plans
and these shall be properly considered by the first respondent
prior to making its decision on the application.
4.
The applicant’s costs are to be paid
by the first respondent.
JUDGMENT
Delivered
on: Wednesday, 24 March 2021
OLSEN
J
1.
This judgment will be brief, considering
the material put up in the papers. Its purpose is more to
explain what I am not deciding
and why that is so, than it is to
explain my reasons for granting this application.
2.
The applicant, Ms Poledore Timveos resides
at 8 Kinnord Place, Berea, Durban. The second respondent,
Zortziko (Pty) Limited,
owns property which fronts onto Stephen
Dlamini Road, Berea, Durban. That property slopes more or less
from west to east
down to Stephen Dlamini Road. The applicant’s
property lies on the western boundary of the second respondent’s
property.
3.
The first respondent, eThekwini
Municipality, approved plans for the construction of a building on
the second respondent’s
property comprising two units.
The main structure of that building appears already to have been
erected, and there is an
interdict in place preventing further work
on the project.
4.
In this application the applicant seeks an
order reviewing and setting aside the first respondent’s
approval of the plans
for the structure on the second respondent’s
property. There are two other respondents, the third and
fourth.
It is questionable as to whether they are necessary
respondents. The third respondent is the executor of the estate
of his
late father who, together with the fourth respondent (the
third respondent’s mother), originally applied for the approval
of the building plans for the property which is now owned by the
second respondent. The third respondent is a director of
the
second respondent.
5.
The applicant contends that the approval of
the building plans was unlawful for non-compliance with the
applicable town planning
regulations and controls, specifically in
three respects, that is to say coverage, rear space and height
(measured in storeys).
It is also contended that the building control
officer of the first respondent could not possibly have been
satisfied that the
disqualifying features referred to in s 7(1)(b) of
the National Building Regulations and Building Standards Act, 1977,
did not
require the application for approval to be refused.
6.
The second, third and fourth respondents do
not oppose the relief sought. The coverage allowed on the site
is forty percent
(40%), and they concede that the plans depict a
structure which exceeds the allowable coverage. These
respondents contend
that the other complaints are not justified, but
offer no reason for taking that view.
7.
The first respondent opposes the
application. The first ground of opposition is that the review
proceedings should be dismissed
because they were brought out of
time.
8.
The argument for the applicant is that
these proceedings, being of a technical nature, are vitally affected
by the content of the
drawings depicting the proposed development and
that the applicant was unable to launch review proceedings (as
opposed to the interdict
proceedings which were instituted earlier)
without access to the plans. It is contended by the applicant
that the 180 day
period commenced to run only when her attorney was
given a set of plans by the attorneys representing the second, third
and fourth
respondents. That happened on 18 September 2019,
prior to which date the applicant’s requests for a copy of the
plans
from the first respondent were rebutted. The first
respondent contends that the 180 day period must run from 24 April
2018,
the date upon which the first respondent permitted an engineer
engaged by the applicant to peruse, but not take copies of, the
plans. I agree with the applicant’s argument that such a
perusal is hardly sufficient to put a litigant like the applicant
in
a position to decide whether the plans were reviewable for
non-compliance with the law. However, to put matters beyond
doubt, I propose to grant the extension sought on the footing that
the relief is there if it is needed. In my view the unlawful
state of affairs which exists because of the approval of the plans
cannot be allowed to continue to subsist.
9.
As far as the merits of the matter are
concerned, counsel for the first respondent has conceded that in
effect the first respondent
has done little more in answer to the
applicant’s claim than assert that each of the departments
whose responsibility it
was to approve the various aspects of the
plans made a decision favouring approval, and that their decisions
must be taken to be
correct. A perfect example of this
unsatisfactory approach to this case is evident from the first
respondent’s attitude
to the issue of coverage. The first
respondent’s argument is that there is a square on the top left
hand corner of
the site plan where the architect has placed some
calculations which are said to reveal that the coverage used is 39.7%
of the
area of the property. The briefest perusal of the site
plan illustrates that those calculations cannot possibly be correct.
By my rough calculations, based on the site area actually depicted on
that drawing, the coverage is very substantially over 40%.
No
quibbling about marginal issues can change that.
10.
The relief sought by the applicant
accordingly has to be granted.
11.
Counsel for the applicant has argued that
it is appropriate to make findings against the first respondent
concerning the other bases
upon which the approval of the plans is
sought to be reviewed and set aside. It is also argued that I
ought to make a finding
that there is clear evidence of dishonesty
and collusion on the part of the officials employed by the first
respondent to consider
applications for approval of building plans.
12.
Dealing first with the other grounds of
review, there is strong evidence before me that by reason of an
excess of storeys the height
restrictions to which the site is
subject have been breached by a considerable margin. There is
also some evidence that the
rules relating to space around the
building have been breached. Both the plans and photographs
that have been put up with
the founding papers suggest strongly that
the effect of the construction is disastrous for the applicant’s
property and its
value. It looks very much like the first
respondent ought to have held that approving the plans would have
involved a breach
of s 7(1)(b) of the Standards Act.
13.
Notwithstanding these observations I am
concerned that these aspects of the case deserve more interrogation
than has proved possible
on the papers before the court. The
first respondent, as well as the other three respondents, bear some
responsibility for
that lack of interrogation, because they have in
effect confined themselves to broad allegations that those criticisms
of the decision
to approve the plans are not well founded.
Given the manner in which the case on these issues was presented on
the papers
by the applicant, the respondents have said just
sufficient to be regarded as having raised a dispute which would have
justified
a referral to oral evidence for the purposes of a proper
interrogation of the plans in order to resolve the disputes.
Such
a referral is not appropriate in the circumstances of this
case. An order setting aside the plans means that new plans
will
have to be submitted and considered as if they were the first to
be submitted for the development of the site. The second
respondent has applied for the consolidation of neighbouring
properties with the one in issue in this case, by which means the
second respondent hopes to overcome the problem with coverage.
If it is overcome (or thought to be overcome) fresh plans
for the
development of the site will need to be delivered. Counsel
agreed during argument that, given that there is already
a structure
on the property, not all of which, presumably, will be abandoned, the
applicant has a right to have notice of the submission
of the new
plans for development on the site, and the first respondent an
obligation to consider any representations the applicant
may wish to
make in opposition to the approval of the new plans. (See
Walele v City of Cape Town and others
[2008] ZACC 11
;
2008 (6) SA 129
, para 52
.
)
It was agreed that an order in this regard should be made.
14.
Finally, I decline the request made by
counsel for the applicant, that I should make a finding that the
deviations between the approvals
granted by the various officials
responsible for the different aspects of these plans, and what was
required of them, are so egregious
that the conclusion must be that
they acted corruptly (to put it plainly). Putting aside the
issues as to whether a judge
should be making such a finding when it
is not necessary for purposes of granting the relief sought, the
position is that the persons
who would be affected by such a finding
are not parties to this litigation. When this was put to counsel for
the applicant his
answer was that they have signed affidavits
confirming that in the exercise of their powers they made the
decisions which led to
the approval of the plans. The
difficulty with that answer is that those affidavits were drafted at
the instance of the municipality,
in order to further its aim of
advancing the case that because all of the officials granted their
respective approvals, the plans
must have been properly approved.
It seems clear that had the individual officials been parties, to
protect their own interests
their affidavits would have gone
considerably further in attempting to explain why the decisions they
made should be regarded as
bona fide
.
That was not the line that the municipality took.
15.
Nevertheless it must be observed that the
best that can be said about the conduct of the first respondent in
connection with these
plans is that it evidences a diligent
indulgence in ignorance. The line which the first respondent
took in opposing this
application suggests that there is little that
the first respondent could have said to contradict that proposition.
I
make the following order.
1.
To the extent necessary, in terms of
s 9
of
the
Promotion of Administrative Justice Act No 3 of 2000
, the period
in terms of
s 7(1)
of the said Act for the bringing of this
application for the relief in these proceedings is extended to the
commencement date of
this application.
2.
The decision of the first respondent taken
on 13 March 2015 to approve building plans number 1420215 in respect
of the immovable
property known as Portion 1 of Erf 2107 Durban is
reviewed and set aside.
3.
The first and second respondents are
directed to give notice to the applicant of any future application
for the approval of plans
for the development of Erf 2107 Durban (or
that Erf consolidated with any other immovable property), such notice
to be accompanied
by a full set of the plans submitted for approval,
and any representations made on behalf of the second respondent in
support of
such approval. The applicant shall be entitled to
make representations concerning the application for the approval of
such
plans and these shall be properly considered by the first
respondent prior to making its decision on the application.
4.
The applicant’s costs are to be paid
by the first respondent.
OLSEN
J
APPEARANCES
Date
of Hearing:
Friday, 12
March 2021
Date
of Judgment :
Wednesday, 24
March 2021
Applicant’s
Counsel:
Mr SR Mullins
SC
Instructed
by:
Norman
Brauteseth & Associates
Applicant’s
Attorneys
4
Caefron Avenue
Westville…3630
(Ref:
Mr B Cheves/NT0072)
(Tel:
031 – 266 9300)
(Email:
bob@nbalaw.co.za
)
1
st
Respondent’s Counsel:
Ms M Mtati
Instructed
by:
S D Moloi &
Associates Incorporated
First
Respondent’s Attorney
7
th
Floor, Suite 701
Corporate
Place
Dorothy
Nyembe Street
Durban
(Ref:
SN/xsn/0052-2)
(Tel:
031 – 301 2812 / 2950)
(Email:
samke@sdmoloi.com
)
2
nd
,
3
rd
&
4
th
Respondents Counsel: Mr AJ
Troskie SC
Instructed
by:
Richard Evans & Associates 4
th
2
nd
,
3
rd
&
4
th
Respondents'
Attorneys
Loudon
Park, 8 St. Mary’s Road
Kloof…Durban
(Ref:
RL Evans/svz/Z012.S116/19)
(Tel:
031 – 764 0773)
(Email:
suzanne@reaa.co.za
)
c/o
Goldman Schultz Attorneys
101
Innes Road,
Morningside…Durban
(Tel:
031 – 201 2111)