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[2012] ZASCA 65
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Midstream Home Owners Association and Others v Shoprite Checkers (Pty) Ltd and Others, Heritage Hill Home Owners Association v Shoprite Checkers (Pty) Ltd and Others (424/2011, 435/2011) [2012] ZASCA 65 (21 May 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 424/2011
In the matter between:
MIDSTREAM HOME OWNERS
ASSOCIATION
….................................
First
Appellant
MIDFIELD HOME OWNERS
ASSOCIATION
….................................
Second
Appellant
MIDLANDS HOME OWNERS
ASSOCIATION
…...................................
Third
Appellant
MIDSTREAM COLLEGE
(PTY) LTD
…................................................
Fourth
Appellant
RETIRE @ MIDSTREAM
HOME OWNERS
ASSOCIATION
….....................................................................................
Fifth
Appellant
BONDEV MIDRAND (PTY)
LTD
….........................................................
Sixth
Appellant
MARTHINUS JOHANNES DU
TOIT
….............................................
Seventh
Appellant
and
SHOPRITE CHECKERS
(PTY) LTD
…...............................................
First
Respondent
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
…...........................................................................
Second
Respondent
HERITAGE HILL HOME
OWNERS ASSOCIATION
…......................
Third
Respondent
GAUTENG PROVINCIAL
GOVERNMENT,
MEMBER OF THE
EXECUTIVE COMMITTEE
OF AGRICULTURE &
RURAL DEVELOPMENT
…........................
Fourth
Respondent
Case
No: 435/2011
In
the matter between:
HERITAGE HILL HOME
OWNERS ASSOCIATION
…....................................
Appellant
and
SHOPRITE CHECKERS
(PTY) LTD and OTHERS
…...............................
Respondents
Neutral citation:
Midstream Home Owners Association v Shoprite Checkers
(424/2011);
Heritage Hill Home Owners Association v Shoprite
Checkers
(435/2011)
[2012] ZASCA 65
(21 MAY 2012)
Coram:
Mthiyane
DP, Nugent, Ponnan and Malan JJA and Ndita AJA
Heard:
02 May
2012
Delivered: 21 May 2012
Summary:
Tswane
Town Planning Scheme 2008
– line of no access –
revocation by Municipality
__________________________________________________________________
ORDER
On appeal from:
The North Gauteng High Court, Pretoria (C Pretorius J sitting as
court of first instance):
The
appeal is dismissed with costs,
including
the costs of two counsel.
___________________________________________________________________
JUDGMENT
MALAN JA (Mthiyane DP,
Nugent and Ponnan JJA and Ndita AJA concurring):
[1] This is an appeal
against the order of Pretorius J dismissing with costs the
application of the appellants for a final, alternatively,
an interim
interdict, prohibiting the first respondent (Shoprite Checkers) from
constructing, completing or utilising an access
point on Brakfontein
Road, Centurion, giving entry to Shoprite Checkers’
distribution centre, allegedly in breach of what
was called a ‘line
of no access’ imposed in terms of approved amendment scheme
945, an amendment to the then Centurion
Town Planning Scheme, 1992,
now the Tshwane Town Planning Scheme, 2008. (I explain presently the
meaning of that phrase.) The interim
relief was sought pending an
application to review and set aside any approval that may have been
granted to Shoprite Checkers to
construct the access point; an
application for a final interdict prohibiting any development or
construction in breach of the environmental
authorisation; an appeal
to the Townships Board; and an application for a mandamus against the
second respondent (the Municipality)
compelling it to procure
suitable orders against Shoprite Checkers. The appeal is with the
leave of the court below.
[2]
The first five appellants
1
in the
main appeal (424/2011) all form part of Midrand Estates which was
developed by the sixth appellant. The seventh appellant
is a resident
of Midstream Estates and owns a stand there. Midrand Estates is a
township development known colloquially as Midstream
Estates.
Midstream Estates will when completed comprise a land area of
approximately 1000 hectares with 5 000 residential
dwellings.
Shoprite Checkers’ distribution centre is situated on
Louwlardia Extension 25 Township, Centurion within the industrial
corridor on both sides of the Ben Schoeman highway (N1) linking
Johannesburg and Pretoria. Brakfontein Road runs east to west towards
the N1 and the distribution centre is located south of it with
Olievenhoutbosch Drive on its western border. The Heritage Hill
residential development lies north of Brakfontein Road, opposite the
distribution centre. To the east of it is Midstream Estates
entry to
which is also from Brakfontein Road. A number of corporations have
established distribution centres or head offices in
this industrial
area from as early as 1999 or 2000.
[3] The third respondent
in the main appeal, the Heritage Hill Home Owners Association, was
cited as a respondent in the court below.
It did not take part in
those proceedings except to file an affidavit associating itself with
the application. On dismissal of
the application it was ordered to
pay the costs of the application jointly and severally with the other
applicants. It seeks to
appeal (in appeal 435/2011) against the
judgment of the court below only on the basis that should the main
appeal of the other
appellants be upheld, the order for costs against
it should be reversed.
History
[4] The Shoprite Checkers
distribution centre was constructed on land approximately 49,9159
hectares in extent halfway between the
NI highway in the west and
Midstream Estates in the east. Some R3 billion was spent on
construction of the centre, acquisition
costs and professional fees
and a further R2 billion on vehicles, equipment and stock. The
distribution centre was designed as
part of the Shoprite Checkers
1999 development plan. It was originally envisaged that there would
be three access points, or entrances,
to the centre, two in
Brakfontein Road and one in Olievenhoutbosch Drive. However, because
a phased development was planned, only
one access point in
Brakfontein Road was at first necessary. The second one on that road
was indicated on the development plan
as a ‘Future Access
Road’.
[5] For the first phase
of the development of the distribution centre a floor space ratio of
only 0,21 was required allowing for
the construction of a building
with a floor space of approximately 105 000 m
2
.
Future expansion required an increase in the floor space ratio to 0,4
allowing the construction of a structure with a floor space
of
approximately 200 000 m
2
.
The Municipality was presented with the 1999 development plan when
the township on which the centre was constructed was established
during 2001.
[6] Clause 7(2) of the
Tshwane Town Planning Scheme, 2008, which I deal with more fully
below, permits the municipality to ‘prohibit
the entrance to or
exit from a property to a public street from any boundary of such
property, this boundary is indicated by the
following symbol on the
map’. The symbol is reflected as a broken line. Where such a
prohibition has been imposed that line
is drawn on Map
B of the
scheme along the relevant boundary of the property concerned. It is
that line that has been referred to in the proceedings
as a ‘line
of no access’.
[7] In approving the
township the Municipality imposed, with the exception of a certain
portion 58 metres wide, a line of no access
along the entire northern
boundary of the property along Brakfontein Road. This limited access
point was to be used by motor vehicles
attending the offices of
Shoprite Checkers at the distribution centre. A second line of no
access was also imposed along the entire
western boundary of the
property along Olievenhoutbosch Drive with the exception of a certain
portion some 85 metres wide. Within
this portion Shoprite Checkers
constructed an access point or entrance for trucks which is some 37
metres wide. Only these two
points of access were approved in terms
of the approved amendment scheme 945, which is the operative town
planning scheme relating
to the property. The access points were
reflected on the approved B series maps following approval of scheme
945.
[8] The application for
the establishment of the township, envisaging a floor space ratio of
0,4, was approved on 12 September 2001.
The township was proclaimed
on 4 September 2002. However, because Shoprite Checkers did not want
to incur liability for taxes on
the property based on a floor space
ratio of 0,4 (which was not needed for the first phase of the
development), it was recorded
in condition 4(2)(c) of the conditions
of the township approval that the floor space ratio would be
restricted to 0,21, but that
it could be increased to a maximum of
0,4 with the written consent of the local authority. A services
agreement between Shoprite
Checkers and the Municipality was
concluded on 16 August 2001 in terms of which Shoprite Checkers’
contribution to external
engineering services relating to the
establishment of the township was calculated at the higher floor
space ratio.
[9] The fresh produce
warehouse on the property was constructed and came into operation
towards the end of 2001. The dry goods warehouse
of 55 000 m
2
was built and became operative in
2002. The distribution centre, however, had to be enlarged and, on 11
April 2008, Shoprite Checkers
applied for the increase of the floor
space ratio from 0,21 to 0,4. The application was approved on 9
October 2008. The Municipality
imposed the following conditions when
approving the increase:
‘
1.1 City
Planning and Development
(1) The height of buildings on the erf
shall be 2 storeys, but may be increased with approval of the local
authority.
...
(3) The floor area ratio (FAR) shall
not exceed 0,4.
(4) A site development plan and a
landscape development plan, unless otherwise determined by the
Municipality, compiled by a person
suitably qualified to the
satisfaction of the Municipality, shall be submitted to the
Municipality for approval prior to the submission
of building plans.
(5) The building lines shall be in
accordance with the site development plan.
…
(8) Entrances to and exists from the
erf shall be located, constructed and maintained to the satisfaction
of the Municipality.
…
2.1.2.1 Infrastructure Planning and
Management
1.
A
complete Site Development Plan must be submitted before any building
construction may commence, at the cost of the applicant,
for the
approval of the Division: Roads and Storm Water. Engineers Drawings
with details regarding access, parking layout and storm
water
drainage must be submitted with the Site Development Plan.’
[10]
Following this approval, the Municipality requested a comprehensive
Traffic Impact Study in order to motivate the proposed
access points
including the disputed access point
in
Brakfontein Road
.
The study was submitted in February 2009. The Public Works and
Infrastructure Development Department of the Municipality on 28
April
2009 approved the Traffic Impact Study but imposed certain
conditions, among others that –
‘
1.6
Access:
The proposed extended warehousing
facilities will have the following accesses:
Access 1 from Brakfontein Road,
proposed new access 570m to the east of the Olievenhoutbosch
Drive/Brakfontein Road intersection:
This access will be used only
for inbound heavy vehicle traffic. [This is the access point in
dispute]
Access 2 from Brakfontein Road, 300m
to the east of the Olievenhoutbosch Drive/Brakfontein Road
intersection: This existing access
to the office building will only
be a left-in, left-out access in the future for the office park in
the northeast corner of the
development and to the parking area for
the personal cars of the truck drivers of the Shoprite Distribution
Centre.
Access 3 from the Olievenhoutbosch
Drive: This is a proposed new access approximately 225m south of
Brakfontein Road. This access
will be a left-in, left-out for light
vehicles to the office park only.
Access 4 from the Olievenhoutbosch
Drive: This existing access will in future only be used for all
outbound heavy vehicle traffic
and for light vehicle traffic to and
from the fresh market.
Access 5 …
1.7
(i)
Access
1:
Brakfontein Road/Heavy vehicle access to Shoprite DC
2010 Proposed Upgrades:
Introduce traffic signal control
(when warranted)
Exclusive left and exclusive right
turn lanes on southern approach
Exclusive left turn lane on eastern
approach
Exclusive right turn lane on western
approach
Future planning for the road includes
two through lanes in the east-west direction, but one lane is
sufficient for the development
traffic demand. (Hence, doubling of
Brakfontein Road will not be implemented by Shoprite).’
[11] The site development
plan, showing the new access point (access 1 referred to in the
previous paragraph), was approved by the
Municipality on 29 September
2009. On 25 January 2010, the Municipality authorised Shoprite
Checkers to commence with the road
widening activities to construct
the new access. Construction began in February 2010 and the design
for the traffic signal was
approved during June 2010, and its
installation on 15 July 2010. The new access point was completed by
the time Shoprite Checkers’
answering affidavit was filed in
October 2010. The traffic signal was installed in January 2011. The
additional facilities including
the extension of the warehouse and
new access were completed at a cost of R345 million and have become
fully operational.
[12] In the June 2010
Shoprite Checkers financial report Mr JW Basson, chairman of the
group, described the distribution centre
as the largest of the group
‘
where
distribution facilities have virtually doubled from 80 000 m
2
to 145 000
m
2
.
The main building of 114 000 m
2
will be the
largest distribution centre under one roof on the continent.
On completion at the end of the 2010
calender year the facility will serve as the distribution point for
about 90% of ambient products
delivered to approximately 380 stores
in the Gauteng area and beyond.
More than 1,100 suppliers will be
delivering their products to the centre where they are stored,
collated, and then distributed
to retail stores on a high-frequency
basis.
The new Centurion distribution centre
was developed in a responsible manner using environment-friendly
approaches to construction.
This was followed through with further
investment in environment-friendly design that includes treatment of
waste water and an
ability to recycle waste. Central reclamation
forms part of the Group’s safety and recycling programme, for
the removal of
damaged stock at the earliest opportunity, to avoid
possible contamination of other products and control waste.’
Clear right
[13] In their application
for an interdict the appellants allege that the new access point in
Brakfontein Road was constructed in
breach of the line of no access
imposed by the Municipality when the township was originally approved
pursuant to amendment scheme
945. The main issue, the deponent to the
founding affidavit stated, was the ‘unlawful’ use by
Shoprite Checkers of
their property in constructing the disputed new
access point in Brakfontein Road. The appellants, despite inquiries
made at the
Municipal offices, could find no formal application for
approval of the new access point nor for the revocation of the line
of
no access. In addition, the deponent to the founding affidavit
referred to the zoning certificate relating to the property, dated
21
September 2010, annexure 3 of which reflected access to the property
as set out in the B series maps, in other words, only the
two
originally approved access points – one in Brakfontein Road and
the other in Olievenhoutbosch Drive.
[14]
Section 20 of the Town Planning and Townships Ordinance 15 of 1986
regulates the provisions which may be contained in a town
planning
scheme such as the Tshwane Town Planning Scheme, 2008. The general
purpose of a town planning scheme is the co-ordinated
and harmonious
development of the area so as to promote its health, safety, good
order, amenity, convenience and welfare (s 19).
2
The
Municipality’s power to prepare a town planning scheme derives
from s 18 of the Ordinance. Section 20(1)
(a)
provides
that the local authority may in its discretion and on conditions as
it may determine consent to the use of any land or
building for a
particular purpose. It may also, in its discretion and on such
conditions as it may determine, grant exemption from
the provisions
of the scheme or relax its requirements (s 20(1)
(b)
).
[15] Clause 7 of the
Tswane Town Planning Scheme deals with the ‘prohibition of
access’ and provides –
‘
Entry to or
exit from any property to or from a public street, shall be subject
to the following conditions:
(1) Entrances to and exists from such
property, “Residential 1” and “Residential 5”
excluded, shall be located,
constructed, drained and maintained to
the satisfaction of the Municipality, and if required by the
Municipality, constructed with
a dust-free surface, internal
driveways included: Provided that entrance gates to such property
shall be located at least 6,0 m
from the edge of the tar of a street
or road.
(2) The Municipality may prohibit the
entrance to or exit from a property to a public street from any
boundary of such property,
this boundary is indicated by the
following symbol on the map: [symbol shown]
With the proviso that the
Municipality may revoke such access prohibition on receipt of a
written application for its permission,
subject to any conditions
that the Municipality may impose
,
except in the case of access restrictions in respect of National or
Provincial Roads.’
(My
emphasis.)
[16] Clause 15 of the
Tshwane Town Planning Scheme, 2008 provides –
‘
The
permission of the Municipality to use land and buildings or to relax
certain conditions stipulated in this Scheme, its Schedules
and
Annexures, where such permission is explicitly stated, shall be
subject to an application procedure as required by the Municipality
and such application shall be subject to the following:
documents as prescribed by the
Municipality shall be submitted with the prescribed fee;
the prescribed advertisement
procedure shall be complied with and the Municipality may waive this
requirement wholly or partly
if it is satisfied that such
non-compliance is not of such a material nature that it is likely to
affect anyone detrimentally;
the Municipality may approve or
refuse such application subject to such conditions the Municipality
deems necessary to regulate
such permission; and
the Municipality may require that a
contribution in respect of engineering services is payable in terms
of Section 20 of the Town
Planning and Townships Ordinance, 1986
(Ordinance 15 of 1986) as and when required by the Municipality.’
[17] It is not in dispute
that clause 15 regulates the relaxation of a line of no access. The
reference in clause 15(2) to the ‘prescribed
advertisement
procedure’ is not a reference to the advertisement procedure
specified in clause 16(2) to (9). Clause 16 deals
with ‘consent
use procedure’. The revocation of a line of no access does not
fall into the field of application of
clause 16 as it is formulated
in clause 16(1).
[18] The Tshwane Scheme
does not contain a definition of ‘application’ as used in
clauses 7 and 15 but, instead, defines
‘permission of the
Municipality’ as ‘the permission or approval granted by
the Municipality in terms of Clause
15 to use land and buildings for
a specific use or to relax certain conditions applicable to the use
of land and buildings’.
Clause 15(1) states that the
‘permission’ of the Municipality to use land or to relax
certain conditions stipulated
in the Scheme, ‘where such
permission is explicitly stated’, shall be subject to an
application procedure. Clause 7(2)
expressly refers to ‘a
written application’ for the Municipality’s permission to
relax a line of no access. Clause
15 provides that the permission of
the Municipality shall be subject to an application procedure ‘as
required by the Municipality’.
It is further provided that the
application shall be subject to the submission of documents as
prescribed and that the ‘prescribed
advertisement procedure’
shall be complied with, although the Municipality may waive ‘this
requirement wholly or partly
if it is satisfied that such non
compliance is not of such material nature that it is likely to affect
anyone detrimentally’.
[19] The Municipality’s
council resolved on 29 November 2007 to approve the procedure for
permission under clause 15 of the
Tshwane Scheme. In so far as clause
7 is concerned the procedure ‘as required by the Municipality’
is set out in annexure
5 to the resolution:
‘
Written
application must be submitted to City Planning and shall contain the
following:
A motivating memorandum;
Power of attorney if the applicant is
not the owner;
Copy of the title deed;
Site plan indicating the access
required;
Zoning certificate and/or Annexure
B/Annexure T/Annexure or Schedule or Consent use.
Application fee.
Advert not necessary
Circulate to Transport Engineers and
Traffic section.’
(My
emphasis.)
This resolution was
passed to provide for a ‘streamlined’ manner in which
application could be made for the Municipality’s
permission and
‘a more simplistic method for advertisement if so required’
(para 4.4.21 of the resolution). The council
resolved not to require
applications under clause 7 to be advertised. In other matters,
however, such as where application is made
for permission to erect a
second dwelling on a property, an advertisement in the form of a
placard on site is required (clause
14(10) of annexure 5) and also
where permission is sought to establish a spaza shop in a dwelling
(Schedule 9 to annexure 5).
[20] The consent that was
granted to increase the floor space ratio (dated 11 April 2008) was
conditional upon ‘[a] complete
Site Development Plan [being]
submitted... at the cost of the applicant, for the approval of the
Division: Roads and Storm Water.
Engineers Drawings with details
regarding access, parking layout and storm water drainage must be
submitted with the Site Development
Plan.’ The Traffic Impact
Study was approved on 28 April 2009 and the site development plan on
29 September 2009.
‘
Revocation’
of line of no access.
[21] The appellants
contended that there was no revocation of the line of no access and
the new point of access was thus not permitted.
Clearly there was no
express revocation of the line of no access. But it was submitted on
behalf of Shoprite Checkers that it was
revoked by implication on 9
October 2008 when the Municipality informed their town planner that
the application for the increase
of the floor space ratio to 0,4 had
been successful. In terms of condition 1.1(4) of the approval a site
development plan had to
be submitted prior to the approval of
building plans. Condition 1.1(8) required Shoprite Checkers to
locate, construct and maintain
the entrances to and exists from the
property to the satisfaction of the Municipality. It was submitted
that from this condition
it followed that the Municipality expressly,
alternatively, by necessary implication, revoked the line of no
access in approving
the new access points.
[22] The appellants have
submitted that the decision by the Municipality could not have been
taken by implication because in its
approval of the increase on the
floor space ratio the Municipality stated that ‘[t]he
requirements of the Centurion Town
Planning Scheme, 1992 remain
applicable’. Since the line of no access was a condition of the
approval of amendment scheme
945, so the argument went, the express
condition referred to had the effect of retaining the line of no
access originally imposed,
notwithstanding the approval of the
development plan. They submitted further that the rules of natural
justice and administrative
law would be rendered nugatory if a
decision constituting administrative action could be taken by
implication.
[23] In my view the
submissions made on behalf of the appellants attach undue
significance to the use of the word ‘revocation’
in
clause 7(2) of the Scheme. The submission suggests that the depiction
alone of the line on Map B constitutes the prohibition,
which remains
in place until such time as the line is physically erased from the
map, whether wholly or in part, which in my view
is not correct. The
prohibition upon access emanates from the decision by the
Municipality to prohibit it. It is clear from clause
7(2) that what
may be prohibited may also be permitted by a decision to permit. When
read together with clause 7(2), properly construed,
the line that is
drawn on Map B is no more than a physical depiction of a decision to
prohibit, but subject to any decision to
permit. The clause does not
require the decision to take the form of a physical erasure of the
line. It requires no more than that
permission be granted as a fact.
[24] A person who seeks
that permission is required by clause 15 to do so according to the
application procedure required by the
Municipality. The required
procedure was laid down in the resolution that I have referred to in
paragraph 17, which lists the ‘documents
as prescribed by the
Municipality’ (clause 15(1)) when such an application is made.
Clearly that prescription of the documents
to be submitted when
permission is sought is solely for the benefit of the Municipality
and it is entitled to waive the requirement.
So far as clause 15(2)
subjects an application to compliance with ‘the prescribed
advertisement procedure’ it is apparent
from the resolution
that no advertisement procedure has been prescribed.
[25] I cannot see how the
submission of the site development plan for approval, depicting the
proposed access, can be construed
as anything other than an
application for permission from the Municipality to have that access.
An ‘application’ as
ordinarily understood in this context
is, after all, nothing more than a request. That the Municipality did
not insist upon the
prescribed application form being completed, nor
upon the documents specified in the resolution accompanying the
development plan,
does not seem to me to be material. I said earlier
that the requirement that those documents be submitted when an
application is
made is solely for the benefit of the Municipality and
it is not obliged to insist upon it.
[26] For those reasons I
think it is clear that Shoprite Checkers has indeed been granted
permission to have the disputed access,
as the Municipality was
entitled to do. For so long as that permission stands Shoprite
Checkers is not acting unlawfully and the
relief that was sought in
that regard was properly refused.
Interim interdict
[27] The appellants
sought interim relief against the respondents prohibiting Shoprite
Checkers from constructing, completing or
using the new access point
pending finalisation of the following proceedings: the appeal to the
Townships Board in terms of s 139
of the Ordinance against the
revocation of the line of no access; the application to review and
set aside of the decision to revoke
the line of no access; a final
interdict against Shoprite Checkers to stop any development or
construction in breach of any existing
environmental authorisation;
and the obtaining of mandamus against the Municipality to procure
suitable orders against Shoprite
Checkers relating to its alleged
illegal conduct. In argument counsel limited his address to the
prospects of success of the intended
application to review and set
aside the decision to revoke the line of no access.
[28] I have already found
that Checkers Shoprite has been granted permission as a fact to have
access, as the Municipality was entitled
to do, and is not acting
unlawfully. Nonetheless, the interim interdict was sought on the
basis that permission ought in law not
to have been granted, and is
liable to be set aside.
[29] I think it is fair
to say that the true complaint by the appellants is that they were
not given an opportunity to oppose the
request to the Municipality
for permission to access the property. In that respect the submission
was that the decision by the
Municipality constituted administrative
action and they were entitled to be heard before the decision was
made. Once more I do
not think that is correct.
[30] Where the
Municipality prescribes an ‘advertisement procedure’ as
contemplated by clause 15(2) it might be inferred
that it invites
objections from interested parties as part of its procedure and will
grant objectors a hearing. But the clause
does not demand that the
Municpality must prescribe such a procedure and in this case it chose
not to do so.
[31] Nonetheless, so it
was submitted, the decision constituted ‘administrative action’
under the
Promotion of Administrative Justice Act 3 of 2000
, which
was subject to a fair administrative procedure, which includes giving
a reasonable opportunity for interested parties to
be heard.
Section
3(1)
of the Act, read with
s 3(2)
, prescribes an opportunity to make
representations being given only to persons whose ‘rights or
legitimate expectations’
are materially and adversely affected
by the administrative action. I do not think that the appellants have
demonstrated any right
that was affected by the decision to allow the
access. Clearly the members of the appellants – like other
members of the
public – have no right to use the road without
any impediment. Nor was anything done by the Municipality to induce
in the
appellants an expectation that they would be heard before
access from the road was permitted.
[32] It follows that the
appellants have not shown that they would be successful on review and
there are no grounds for granting
interim relief.
[33] The main appeal
should therefore be dismissed. As a result no order need be made on
the appeal of the third respondent. The
following order is made:
The appeal is dismissed
with costs, including the costs of two counsel.
__________
F R MALAN
JUDGE OF APPEAL
APPEARANCES:
For Appellant: N G D
Maritz SC and
M P van der Merwe
J W Schabort (Case 435)
Instructed
by:
Tim du Toit Attorneys
Pretoria
Naudes Inc
Bloemfontein
For Respondent: S J
Grobler SC (1
st
Resp) and
A Liversage (1
st
Resp)
Instructed
by:
Werksmans Inc (1
st
Resp)
c/o Weavind & Weavind
Pretoria
Strauss Daly (1
st
Resp)
Bloemfontein
Hugo & Ngwenya
Attorneys (2
nd
Resp)
Pretoria
(2
nd
Respondent does not oppose the Appeal)
Jarvis Jacobs
Raubenheimer Inc (3
rd
Resp)
Pretoria
Rossouws Attorneys (3
rd
Resp)
Bloemfontein
The State Attorney (4
th
Resp)
Pretoria
The State Attorney (4
th
Resp)
Bloemfontein
1
Midstream
Home Owners Association, Midfield Home Owners Association, Midlands
Home Owners Association, Midstream College (Pty)
Ltd, and Retire @
Midstream Home Owners Association.
2
Baron
& Jester v Eastern Metropolitan Local Council
2002 (2) SA
248
(W) para 45.