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[2010] ZASCA 68
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Van Rensburg NO and Another v Naidoo NO and Others, Naidoo NO and Others v Van Rensburg NO and Others (155/09, 455/09) [2010] ZASCA 68; [2010] 4 All SA 398 (SCA) ; 2011 (4) SA 149 (SCA) (26 May 2010)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case
no: 155/09
WILMA
EMM
ERENTIA
VAN RENSBURG NO
First
Appellant
PHILLIPUS
STEPHANUS VAN RENSBURG NO
Second
Appellant
(in
their capacities as trustees for the time being of the Hobie Trust)
and
PERAPANJAKAM
NAIDOO NO
First
Respondent
PU
RSOTHAM
NAIDOO NO
Second
Respondent
SHASHI
NAIDOO NO
Third
Respondent
ANTHOSH
NAIDOO NO
Fourth
Respondent
(in
their capacities as trustees for the time being of the Shan Trust)
_________________________________________________________________________________________________
Case
no: 455/09
PERAPANJAKAM
NAIDOO NO
First
Appellant
PU
RSOTHAM
NAIDOO NO
Second
Appellant
SHASHI
NAIDOO NO
Third
Appellant
SESHAMMA
MOODLEY NO
Fourth
Appellant
ANTHOSH
NAIDOO NO
Fifth
Appellant
(in
their capacities as trustees for the time being of the Shan Trust)
and
WILMA
EMM
ERENTIA
VAN RENSBURG NO
First
Respondent
PHILLIPUS
STEPHANUS VAN RENSBURG NO
Second
Respondent
MEC
FOR HOUSING, LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS
Third
Respondent
EASTERN
CAPE PROVINCE
NELSON
MANDELA METROPOLITAN MUNICIPALITY
Fourth
Respondent
THE
REGISTRAR OF DEEDS
Fifth
Respondent
______________________________________________
___________________________________________________
Neutral
citation:
Van
Rensburg NO v Naidoo NO
(155/09);
Naidoo
NO v Van Rensburg NO
(455/09)
[2010] ZASCA 68
(26 May 2010)
CORAM:
Navsa,
Heher, Van Heerden, Mhlantla JJA and Saldulker AJA
HEARD:
3
May 2010
DELIVERED:
26
May 2010
SUMMARY:
Two
linked appeals ─ nature of rights derived from restrictive
conditions in title deed stated to be subject to alteration
discussed
─ zoning regulations and town planning schemes not overriding
restrictive conditions ─ the Removal of Restrictions
Act 84 of
1967 not applicable ─ power of Member of the Executive Council
of the Eastern Cape Province to alter or amend restrictive
conditions
─ delegation not properly proved ─ decision made without
reference to written objections in any event liable
to be set aside ─
power of court of the
same
division and of equal jurisdiction to set aside or otherwise
interfere with order intended to be final in effect discussed
─
held that in the prevailing circumstances the court had no such power
either by way of inherent jurisdiction or in terms
of the Uniform
rules of court ─ held that justice required the prior order to
be executed.
_
_______________________________________________________________
ORDER
________________________________________________________________
On appeal
from:
Eastern
Cape High Court, Port Elizabeth (Van der Byl AJ and Dambuza J, each
sitting as court of first instance in two separate
but related
matters).
1.
In
Wilma
van Rensburg NO & another v Perapanjakam Naidoo NO & others
(case no 155/09):
(a) the appeal is upheld with costs
including the costs of two counsel.
(b) the order of the court below is
set aside in its entirety and substituted as follows:
‘
The application is dismissed
with costs including the costs of two counsel.’
2.
In
Perapanjakam
Naidoo NO & others v Wilma van Rensburg NO & another
(case no 455/09):
(a) the appeal is dismissed with costs
including the costs of two counsel.
(b) the appellants’ legal
representatives are precluded from recovering any costs from the
appellants related to the unnecessary
and duplicated parts of the
record (one third thereof).
________________________________________________________________
JUDGMENT
________________________________________________________________
NAVSA
et
MHLANTLA JJA: (Heher, Van Heerden JJA and Saldulker AJA concurring)
[1]
These
two linked appeals, which are before us with the leave of this court
have been consolidated, and are the culmination of protracted
litigation between feuding neighbours. The two appeals necessitate
consideration of three
judgments
of the Port Elizabeth High Court. In the first, Froneman J had
ordered that approvals granted by the Municipality, to
legitimise
construction work, which had already been completed in the north
eastern corner of an erf in Summerstrand Township,
Port Elizabeth, be
set aside and that the entire northern building on that erf be
demolished, as well as the top storey and staircase
leading to it of
another building situated in the north-western corner of the erf,
within 60 days of the date of the order. He
also ordered an abatement
of a nuisance emanating from that erf.
1
In the second high court judgment, delivered on 8 July 2008, which is
the subject of the first appeal before us under case number
155/2009,
Van der Byl AJ, purported to declare parts of Froneman J’s
judgment, delivered on 30 March 2007, to be of no force
and effect
and made certain allied orders. In the third judgment, delivered on 2
June 2009, which is the subject of the second
appeal under case
number 455/2009, Dambuza J reviewed and set aside a decision of the
Member of the Executive Council of Local
Government & Traditional
Affairs, Eastern Cape Province (the MEC) to remove restrictive title
deed conditions in relation to
the erf referred to above.
[2] In the first appeal, the power of
a high court, not sitting as a court of appeal, to suspend or nullify
final orders granted
in the same division, in relation to the issues
referred to in the preceding paragraph and to make related orders,
falls to be
considered. In the second appeal the question is whether
the MEC’s decision was rightly reviewed and set aside. The
appeal
against the order of Van der Byl AJ is referred to as the
suspension appeal. The appeal against the order of Dambuza J is
referred
to as the review appeal.
[3]
The
opposing litigating trustees are as follows. The trustees for the
time being of the Shan Trust are Perapanjakam Naidoo, her
husband
Purshotam Naidoo and three other members of their family. The
trustees for the time being of the Hobie Trust are Phillippus
and
Wilma Van Rensburg, who are husband
and
wife. The litigating parties are referred to as the Shan and Hobie
Trusts respectively.
[
4] The
Hobie Trust is the owner of erf 104, situated at 4 Sixth Avenue,
Summerstrand, Port Elizabeth. The Shan Trust owns erf 105,
situated
at 3 Seventh Avenue, Summerstrand, Port Elizabeth. The Hobie
Trust property abuts the northern boundary of the Shan
Trust erf.
The Shan Trust conducts the business of a guest house on erf 105.
[5] The litigation between the parties
relates to certain structures on erf 105 that were constructed,
extended and renovated over
time by the Shan Trust, in furtherance of
the guest house business it conducts on the premises. The following
issues arise:
(a) whether erf 105 could be used for
purposes other than that of a private residential dwelling;
(b) the legality of authorisations to
conduct a guest house business, granted by the Nelson Mandela
Metropolitan Municipality (the
Municipality);
(c) the legality of approvals of
building plans by the Municipality to regularise buildings already
constructed on erf 105; and
(d) the power of the MEC, to alter or
amend restrictive conditions in a title deed, more particularly in
relation to erf 105.
[
6]
As will become apparent, chronology and sequence are crucial to a
proper appreciation of the issues in both matters. At the
outset it
is necessary to deal with the history of Summerstrand, the township
in Port Elizabeth in which the properties in question
are located.
Although there appears to be some confusion about the date of the
establishment of Summerstrand Township, there is
force in the
submissions on behalf of the Hobie Trust, that relevant documentary
evidence tends to show that the township was established
by the
Administrator of the then Cape Province at a time when the Townships
Ordinance 13 of 1927 was in force. The Townships Ordinance
33 of 1934
repealed
the earlier Ordinance, with effect from 1 January 1935. Section 63 of
the 1934 Ordinance provided that any matter pending
under the 1927
Ordinance and uncompleted should be completed in terms of that
earlier Ordinance.
[
7] At
the time of the establishment of Summerstrand Township the following
restrictive conditions were inserted in title deeds in
favour of all
erf-holders:
‘
C.
SUBJECT FURTHER to the following conditions contained in Deed of
Transfer T999/1944
imposed
by the Municipality of the City of Port Elizabeth in terms of the
provisions of Township Ordinance No 13 of 1927 in favour
of itself
and any erf-holder in the Summerstrand Extension Township (and
subject
to alteration and amendment by the Administrator
):
(a) That this erf shall
be for residential purposes only.
(b) T
hat
only one house designed for the use as a dwelling for a single
family, together with such outbuildings as are ordinarily required
to
be used therewith, be erected on this erf.
(c) T
hat
no more than half the area of this erf shall be built on.
(d) T
hat
no building or structure or any portion thereof except boundary walls
and fences shall be erected nearer to the street line
which forms a
boundary of this erf than the building indicated on the diagram of
this erf.’ (Our emphasis.)
[
8] It
is now necessary to deal with the history of material events in
relation to erf 105, which regrettably, is lengthy and complex.
The
Hobie Trust became owner of erf 104 in 1989. The Shan Trust became
owner of erf 105 in 1996 and at that stage there was only
one main
dwelling situated on its southern boundary with a double garage
outbuilding on the western edge.
[
9] The
Shan Trust conducted the business of a guest house on erf 105 by
virtue of a special consent given to it by the Municipality,
ostensibly in terms of its Zoning Scheme Regulations. The first
consent was provided on 28 March 1996 and limited the Shan Trust
to a
maximum of four bedrooms for hire. On 17 September 2002 the Shan
Trust applied for a further departure from the Zoning
Scheme
Regulations to operate a guest house with a total of 11 rooms for
hire. The Hobie Trust, together with five other owners
and residents
in the vicinity, objected to the application. Almost two years later,
on 28 July 2004, the Municipality resolved
to grant the Shan Trust’s
application, subject to certain
conditions.
An appeal by the Hobie Trust to the MEC against that decision was
unsuccessful.
[10] Extensive
improvements on erf 105 were embarked on by the Shan Trust from the
time that it became owner. These were effected
in three phases. It
appears that at almost every stage of the development the plans and
approvals followed the construction work
on the premises. In respect
of improvements effected during 2000 it is admitted by the Shan Trust
that no building plans were approved
by the Municipality until 2004.
The Shan Trust’s contention that it effected the improvements
in the
bona
fide
belief that the plans had been approved before construction commenced
has an unconvincing and hollow ring to it.
[11] An outside staircase extending an
existing one, in a building on the north-western side of the erf
leading to the roof of a
second storey, was not depicted on the
approved plan. Once again, the Shan Trust’s explanation that
this was an oversight
on the part of the architect, in our view, is
too glib. In 2006, and after much litigation, the Shan Trust sought
to overcome this
problem by submitting a site development plan in
pursuit of ex post facto approval.
[12] It is also clear that, prior to
the special consent granted to it by the Municipality to extend its
guest house facilities
from four rooms to 11, the Shan Trust had
already been letting and hiring 11 rooms. It is disingenuous to
suggest, as the Shan
Trust does, that it had lodgers in the
additional rooms rather than guests.
[13] During 2004,
after an application was launched in the Port Elizabeth High Court by
the Hobie Trust to interdict the Shan Trust
from using erf 105
unlawfully, officials of the Municipality inspected the property and
found that rooms were unlawfully used on
a permanent basis as
accommodation for post-graduate students, that a staircase extended
beyond the building line and that a number
of
kitchens
had been installed within the existing buildings, contrary to the
zoning regulations. The Municipality demanded that the
Shan Trust
cease the unlawful use of the property and ensure that the
construction work complied with zoning regulations within
30 days.
[14] As a result of the attitude
adopted by the Municipality, and in the hope that the matter would be
resolved to its satisfaction,
the Hobie Trust withdrew its
application for an interdict. The Shan Trust did not, however,
satisfy all of the demands made upon
it by the Municipality. This led
to a further application by the Hobie Trust in the Port Elizabeth
High Court, in which it sought,
inter alia, an order for the
demolition of the offending buildings on erf 105.
[1
5] The
Municipality initially opposed the application and the Shan Trust
decided in the light thereof, not to do so. However, one
day before
the answering affidavit by the Municipality was due to be filed, it
made a demand upon the Shan Trust, similar to its
previous demand
referred to in para 13 above. According to the Shan Trust it
responded by submitting new plans in an attempt to
legitimise the
buildings already constructed. The Municipality denied having
received those plans.
[16] During February 2007, and before
the application was heard, the Municipality withdrew its special
consent to a departure from
the zoning regulations, in terms of which
it had granted the Shan Trust permission to conduct a guest house
with 11 rooms. It subsequently
also withdrew its opposition to the
application by the Hobie Trust. In response, the Shan Trust entered
the fray and sought a postponement
from Froneman J, in order to do
the following:
(a) to take the necessary steps to
review the Municipality’s withdrawal of its special consent;
(b) to make an application for the
removal of the restrictive conditions from the title deed of Erf 105
Summerstrand;
(c) to resubmit a
detailed sit
e
development plan and building plans in respect of improvements to Erf
105 Summerstrand.
At the same time the Shan Trust
undertook, in an apparent attempt at appeasement, to abate the
nuisance complained of.
[1
7] Froneman
J, characterised the purpose of the postponement application as
follows:
‘
[It] is in essence
to give it time to construct a defence to the claims in the main
application.’
The learned judge
stated that the Shan Trust was required to show that it
prima
facie
had
a
bona
fide
defence. He took the view that, even though the Hobie Trust had
raised the restrictive title conditions in the main application
set
out in para 8 above as a ground for relief for the first time in
supplementary affidavits at the end of October 2006,
2
the Shan Trust had done nothing in this regard until it sought a
postponement in March 2007. Froneman J also took into account
that
the Shan Trust had failed to provide any legal or factual basis for
the proposed review of the Municipality’s decision
to withdraw
its special consent and for the setting aside of the restrictive
title conditions. Consequently, the learned judge
refused the
postponement and ordered the Shan Trust to pay the costs, including
the costs of two counsel.
[
18] In
the main application, Froneman J had regard to the relevant
restrictive conditions. In essence they provide that the erf
be used
for residential purposes only, that only one single house dwelling
for use by a single family and ordinary outbuildings
required for
such use may be built on the erf, and that no garage other than for
ordinary use for persons residing on the erf may
be erected. The
learned judge stated that these kinds of restrictive conditions took
precedence over the Municipality’s zoning
and planning schemes
and that this followed from their characterisation in our case law as
praedial servitudes in favour of other
erf
holders.
3
He concluded that any possible permission by the Municipality to
build or use buildings contrary to the restrictive conditions
could
not be lawful. Froneman J went on to make the orders referred to in
para 5 above. He refused leave to appeal against his
judgment.
[
19] An
application for leave to appeal against the judgment of Froneman J
was refused by this court on 25 September 2007 and in
due course by
the Constitutional Court on 1 November 2007.
[20
] In
the meanwhile on 27 June 2007, approximately three months after the
judgment of Froneman J, the Shan Trust applied to the Premier
of the
Eastern Cape for the removal of the applicable restrictive
conditions. On 17 July 2007 the Hobie Trust objected in writing
to
the application by the Shan Trust and substantiated its opposition.
[21] On 11 October
2007, the MEC, purporting to act under delegated authority from the
Premier of the Eastern Cape Province
(the successor to the erstwhile
Administrator), granted consent for the removal of Condition C (a),
(b), (c) and (d) from Title
Deed No T26430/1996 in respect of erf
105
4
and substituted therefor the following condition:
'That
this erf shall be used for residential purposes, including for a
guesthouse, only
,
subject to the Provisions of the municipality's guesthouse policy and
applicable zoning scheme.'
It is common cause
that
when
the MEC made the decision to remove the restrictive conditions, she
did not have before her the written objection by the Hobie
Trust.
[2
2] On
7 November 2007 the Hobie Trust requested reasons for the MEC’s
decision to remove the restrictive conditions. Reasons
were supplied
on 1 February 2008.
[2
3] The
Shan Trust resorted to yet further litigation. On 8 January 2008 an
application was launched in the Port Elizabeth High Court,
in terms
of which it sought an order setting aside parts of the order of
Froneman J, alternatively an order that parts of his order
be
declared to be of no force and effect. Furthermore, an order was
sought suspending that part of Froneman J’s order in
terms of
which the Shan Trust was required to demolish and remove the top
storey and the accompanying staircase of the building
in the north
western corner of erf 105, pending a decision of the Municipality in
relation to the site development plan that it
intended presenting for
approval. From the perspective of the Shan Trust this would
legitimise the offending structures, ex post
facto. Further relief,
irrelevant for present purposes, was also sought. This application
was heard by Van der Byl AJ.
[2
4] On
26 March 2008, before the Shan Trust’s application was ripe for
hearing, the Hobie Trust instituted proceedings in the
Port Elizabeth
High Court to have the MEC's decision reviewed and set aside, inter
alia, on the grounds that:
(a) the decision
amounted to an abrogation of the real and registered praedial
servitude rights of the Hobie Trust as well
as
of other residents in Summerstrand;
(b
) the
decision was not properly made in terms of the Removal of
Restrictions Act 84 of 1967 (the Act);
(c) the decision
constitute
d
administrative action as defined in the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) and fell to be set aside on the
bases
set out above as well as it having been taken without hearing the
affected parties, including the Hobie Trust and other residents
in
Summerstrand;
(
d) the
objections of the Hobie Trust and other affected residents were not
considered;
(e
) the
MEC lacked statutory authority to make the decision removing the
restrictive conditions.
[2
5] Before
the Hobie Trust’s application was heard, judgment was delivered
in the Shan Trust application referred to in para
23 above. Van der
Byl AJ made the following orders:
‘
1. It
is declared that, because of the removal of the restrictive
conditions contained in paragraph C of Title Deed No. T 26430/1996
in
respect of Erf 105, Summerstrand, Port Elizabeth, by virtue of a
decision of the [MEC] taken on 11 October 2007, paragraphs
1 and 2 of
the order granted in Case No. 1668/06 on 30 March 200
7
have become of no force and effect.
2. The [Municipality] is
ordered to consider and process the site development plan and
building plans, Annexure R to the founding
affidavit, submitted to it
by the Applicants on 7 June 2006 (of which copies have been submitted
to it on 20 March 2007).
3. Paragraph 3 of the
order granted by Froneman J on 30 March 2007 is suspended in terms of
Rule 45A until such time as the [Municipality]
has finally considered
and processed the site development plan and building plans referred
to in paragraph 2 of this order, whereafter
the parties, depending on
the outcome of such consideration and processing, are granted leave
to approach this Court on the same
papers, supplemented as the
circumstances may require, for further appropriate relief.
4. The [Hobie Trust] is
ordered to pay the costs of this application including the costs
attendant upon the employment of two counsel.’
[2
6] Van
der Byl AJ took into account that the Hobie Trust’s review
application was pending. He noted, with dismay that the
Hobie Trust
had refused to agree to a postponement of the Shan Trust’s
suspension application to allow for the finalisation
of the review
application. In dealing with the merits of the application, the
learned judge had regard to numerous decided cases
dealing with the
maxim
cessante
ratione legis cessat ipsa lex
,
which literally translated reads as follows:
‘
If
the reason for a law falls away, the law itself falls away.’
He
considered whether it applied to interpretation of statutes only or
whether it could be applied in relation to judgments and orders
of
court and concluded that a judgment and order may fall away if the
causa
fell away.
[
27] Van
der Byl AJ said the following in relation to the orders issued by
Froneman J:
‘
I am in grave
doubt whether Froneman J would have, had the existence of the
restrictive conditions been the only issue on which
he was called
upon to consider the demolition of the northern building, issued the
orders in question if the restrictive conditions
had at the time of
his judgment already been removed, albeit after the northern building
had already been erected.’
[
28] The
learned judge concluded that the removal of the restrictive
conditions removed the
causa
on which the orders were based and that the execution of the orders
had become unenforceable. He traversed ground already covered
in the
application before Froneman J and, unlike the latter, was readily
accepting of the Shan Trust’s assertion that subsequent
to the
demand by the Municipality during 2006 it had taken all the
neccessary steps to regularise the situation in relation to
offending
structures on erf 105. It was for that reason that Van der Byl AJ
made the orders compelling the Municipality to consider
the plans set
out in the orders made by him. In relation to paragraph 3 of Froneman
J’s order, he held that Uniform rule
45A entitled him to
suspend it in the terms set out earlier.
[
29] Subsequent
to the order by Van der Byl AJ, the Hobie Trust’s review
application was heard and judgment was delivered.
Dambuza J held that
the decision by the MEC, removing the restrictive conditions, was
administrative action in terms of PAJA and
that it fell to be
reviewed and set aside for failure, inter alia, to have regard to the
submissions made by the Hobie Trust. She
held further that there had
been no proper delegation to the MEC and that the latter had no power
to remove the restrictive conditions.
Dambuza J accordingly ordered
the Registrar of Deeds to reinstate the restrictive conditions to
Title Deed No T26430/1996 in respect
of Erf 105, Summerstrand.
Conclusions
[3
0] We
intend to deal first with the review appeal. Counsel representing the
Shan Trust rightly conceded that he could not contend
that the
decision by the
MEC
was not ‘administrative action’ as defined in PAJA.
5
He focused on the nature of the rights derived from the restrictive
title deed conditions. He sought to characterise them as rights
which, from inception, were always subject to alteration or amendment
and submitted that residents including the Hobie Trust could
not now
complain when those restrictive conditions were altered or amended.
He relied on the decisions of this court in
Rossmaur
Mansions (Pty) Ltd v Briley Court (Pty) Ltd
1945 AD 217
and
Ronnie’s
Motors (Pty) Ltd v Van der Walt
1962 (4) SA 660
(A) and on
Garden
Cities v Registrar of Deeds
1950 (3) SA 239
(C).
[3
1] In
Rossmaur
an application to the then Administrator of the Province for the
removal of restrictive conditions was unopposed and the Administrator
subsequently removed them. The respondent applied to court to have
the Administrator’s decision declared
ultra
vires
.
The court of first instance and this court had regard to the
Ordinance in terms of which the Administrator purported to act and
concluded that the Administrator had no power to deprive erf-holders
of their rights. At pp 228-229 of
Rossmaur
the following appears:
‘
Where an
application to establish a township has been granted subject to a
requirement, imposed on the recommendation of the Townships
Board,
that restrictive conditions as to the use of lots are to be included
in the titles, such conditions, when once included
in the titles of
the lotholders, if not framed in terms which expressly render them
subject to future cancellation or variation,
must be regarded as
conferring rights of a permanent nature, which cannot be cancelled or
varied either by the Townships Board
itself, or by any other
authority, by virtue of powers of “administration”
exerciseable over the township concerned.’
[3
2] The
Shan Trust’s reliance on
Rossmaur
is misplaced. That case dealt with the Administrator’s power to
deprive erf-holders of their right. The dictum in the preceding
paragraph is no authority for the proposition that an affected
erf-holder
should
not be afforded a hearing. In the present constitutional structure
such a proposition is untenable.
6
[3
3] It
is true that in
Garden
Cities
the high court held that owners were not entitled to be consulted on
an Administrator’s decision to amend or alter restrictive
conditions. That case was decided by a provincial division almost 60
years ago. It is unsustainable under the current constitutional
dispensation and perhaps even wrongly decided then.
7
[3
4] It
is necessary to address the MEC and the Municipality’s attitude
towards the rights of land owners, derived from restrictive
conditions in their title deeds. The Municipality and the MEC appear
to adopt the position that the Municipality’s policies
and
zoning regulations trump the rights of owners derived from their
title deeds. This is unacceptable.
[3
5] In
Malan
& another v Ardconnel Investments (Pty) Ltd
1988
(2) SA 12
(A) at 40E-G this court said the following:
‘
[I]t
must be borne in mind that a town planning scheme does not overrule
registered restrictive conditions in title deeds. Moreover,
a
consent by a local authority in terms of a town planning scheme does
not
per
se
authorise the user of an erf contrary to its registered restrictive
title conditions. See
Ex
parte Nader Tuis (Edms) Bpk
1962
(1) SA 751
(T) at 752B-D;
Kleyn
v Theron
1966
(3) SA 264
(T) at 272;
Enslin
v Vereeniging Town Council
1976
(3) SA 443
(T) at 447B-D.’
[
36] Froneman
J, in arriving at the conclusions referred to above, stated (at para
8):
‘
It
is common cause that this kind of restrictive condition takes
precedence over the municipality’s zoning and planning schemes.
Generally this follows from their characterisation in our case law as
praedial servitudes in favour of other erf holders (
Ex
parte Rovian Trust (Pty) Ltd
1983
(3) SA 209
(D) at 212E-213F;
Malan
and Another v Ardconnel Investments (Pty) Ltd
1988
(2) SA 12
(A) at 40B-I) and in this case also, particularly, from the
express wording of clause 1.6.5 of the
Council
Zoning Scheme Regulations. Consequently, any possible permission by
the municipality to build or use buildings contrary
to the conditions
cannot be lawful.’
See also
Camps
Bay Ratepayers and Residents Association and others v Minister of
Planning, Culture and Administration, Western Cape and others
2001 (4) SA 294
(C) at 324E-G.
[37] Restrictive
conditions of the kind in question enure for the benefit of all other
erven in a township, unless there are indications
to the contrary.
They are inserted for the public benefit and in general terms, to
preserve the essential character of a township.
In this regard see
Malan
at 38B-C and 39F-G. If landowners across the length and breadth of
South Africa, who presently enjoy the benefits of restrictive
conditions, were to be told that their rights, flowing from these
conditions, could be removed at the whim of a repository of power,
without hearing them or providing an opportunity for them to object,
they would rightly be in a state of shock.
[38
] Section
84 of the Act provides for notice to be given to affected persons in
the event of a contemplated removal of restrictive
conditions. In the
present case the MEC and the Municipality disavowed any reliance on
the Act and relied solely on the right reserved
to the Administrator
to alter or amend the restrictive conditions, as provided for in the
title deed.
[39
] Furthermore,
the MEC’s reliance on a delegation by the Premier is misplaced.
First, the title deed itself does not provide
for delegation. Second,
no delegation was proved. In this regard the onus rested on the MEC.
See
Chairman,
Board on Tariffs and Trade & others v Teltron (Pty) Ltd
1997
(2) SA 25
(A) at 31F-H. The MEC relied on a proclamation in terms of
which the administration of the Act was assigned to her.
8
Given that the MEC and the Municipality disavowed reliance on the Act
it is of no assistance to them.
[4
0] The
two grounds referred to above, separately and together, are fatal to
the Shan Trust case. There also appears to be force
in the
submissions on behalf of the Hobie Trust, that the power to alter or
amend does not include the power to remove or delete.
Further, since
restrictive conditions are usually inserted to preserve the identity
of an area, the Municipality might be required
to engage with other
neighbours and owners in the area. Even if the area has undergone
some change, it does not necessarily follow
that further change is
warranted or unchallengeable. Steps have apparently been taken by the
Municipality in an attempt to engineer
a blanket removal of
restrictive conditions in the Summerstrand area. As far as is known,
no progress has yet been made. It is,
however, for the reasons
aforesaid, not necessary for any further discussion on these or any
other issues in respect of the review
appeal.
[4
1] For
the reasons set out above, the conclusions of Dambuza J cannot be
faulted.
[4
2] We
turn to deal with the suspension appeal. In interpreting a judgment
the court’s intention is to be ascertained primarily
from the
language of the judgment or order as construed according to the usual
well-known rules relating to documents. As in the
case of any
document, the judgment or order and the Court’s reasons for
giving it must be read as a whole to ascertain its
intention. In this
regard see
Administrator,
Cape & another v Ntshwaqela & others
1990 (1) SA 705
(AD) at 715F-H.
9
[4
3] It
is necessary to place Froneman J’s judgment and conclusions in
proper perspective. First, Froneman J was apprised of
the Shan
Trust’s intention to apply to have the restrictive conditions
removed and he clearly and rightly did not think it
would be of any
consequence. Second, the learned judge very carefully considered the
conduct of the Shan Trust over the years and
concluded as
follows (at para
10
):
‘
On
the papers before me the Shan Trust has shown a flagrant and
sustained disregard, not only for the legitimate interests of its
neighbours, but also for the local authority requirements
,
over a very long period of time.’
[4
4] Froneman
J went on to consider whether a damages claim rather than a
demolition order might meet the exigencies of the situation.
He took
into account the diminution in value of the Hobie Trust property as a
result of the Shan Trust’s conduct. He reasoned
that although a
damages claim was viable, it was important to bear in mind that the
continued enjoyment of the privacy of those
living as neighbours to
erf 105 would be destroyed if he failed to order demolition. He took
into consideration that the title
conditions sought to preserve the
character of the suburb and that developments at erf 105 undermine
it.
10
[45] It should be borne in mind that
in the application heard by Froneman J, the Shan Trust was aware of
the allegations made against
it by the Hobie Trust. It is clear that
the repeated offending conduct of the Shan Trust, set out above, was
traversed in the affidavits
filed by the Hobie Trust. The Shan Trust
chose, at its peril, to leave opposition to the Municipality.
[4
6] It
is not surprising that Froneman J was unwilling to grant the Shan
Trust the postponement sought. He had rightly concluded
in the main
application, that the Shan Trust had lagged behind the law once too
often and that enough was enough! Thus, Froneman
J’s orders
were intended to have immediate effect. The 60 day period within
which the demolition order was to be effected
was stipulated for
practical purposes, namely to enable the owners and demolishers to do
the necessary within a time frame. There
can be no doubt that he
intended that immediate steps be taken to ensure execution of the
relevant orders.
[47] It is against
that background that the application before Van der Byl AJ should be
seen. Van der Byl AJ failed to appreciate
the full import of Froneman
J’s
judgement. It re-engaged on issues decided finally by Froneman J,
namely, whether the offending conduct by the Shan Trust
should
continue to be countenanced. It will be recalled that Van der Byl AJ
directed the Municipality to consider plans which,
if approved, would
ostensibly legitimise the contravening structures. Van der Byl AJ did
what he was not empowered to do, namely,
declaring in final terms, an
order made by a court of equal jurisdiction to be of no force and
effect.
11
He was not sitting as a court of appeal or review in respect of
Froneman J’s judgment and yet his reasoning reflects hallmarks
of those procedures.
[
48] The
cases relied upon by the court below, dealing with the rationale for
court orders falling away because of subsequent events,
are
distinguishable. In
S
v Mujee
1981
(3) SA 800
(Z) an accused had been convicted of failing to make
payments under a contribution order to a named certified institution
in
contravention
of provisions of the applicable Maintenance Act. On review it
appeared that the child concerned had previously been
discharged from
the institution and that the contribution order should therefore have
been discharged. The court held that since
a contravention of the
applicable statutory provision was dependent on the contribution
validly being in force, it could not have
been the law’s
intention to treat as valid, a maintenance order when the entire
object of the order had fallen away. Put
differently, the court had
intended that contributions be made for as long as the child was in
an institution. That scenario is
a far cry from the facts of the
suspension appeal. Froneman J had intended the orders he made to be
final and to be executed. As
far as he was concerned the Shan Trust
had come to the end of the road.
[49]
Ras
& andere v Sand River Citrus Estates (Pty) Ltd
1972 (4) SA 504
(T),
Le
Roux v Yskor Landgoed (Edms) Bpk
1984 (4) SA 252
(T) and
Bekker
NO v Total South Africa (Pty) Ltd
1990 (3) SA 159
(T) were all concerned with the
question
whether the
causae
for writs of execution remained extant. These cases do not assist the
Shan Trust.
[
50] Purporting
to act according to the provisions of Uniform rule 45A,
12
Van der Byl AJ suspended Froneman J’s order, in terms of which
the Shan Trust was required to take the necessary steps to
demolish
the offending structures on erf 105. He did so even before the stated
reason for nullifying it had materialised, and without
proper
appreciation of what Froneman J had intended.
[51] Apart from
the provisions of Uniform rule 45A a court has inherent jurisdiction,
in appropriate circumstances, to order a
stay of execution or to
suspend an order. It might, for example, stay a sale in execution or
suspend an ejectment order. Such discretion
must be exercised
judicially. As a general rule, a court will only do so where
injustice will otherwise ensue.
13
[52] A court will
grant a stay of execution in terms of Uniform rule 45A where the
underlying
causa
of a judgment debt is being disputed, or no longer exists, or when an
attempt is made to use the levying of execution for ulterior
purposes. As a general rule, courts acting in terms of this rule will
suspend the execution of an order where real and substantial
justice
compels such action.
14
[5
3] Froneman
J had regard to whether justice would be done by ordering the
demolition. He considered an alternative measure, namely
damages, but
importantly, thought that the conduct of the Shan Trust over the
years had been flagrantly disrespectful of the law
and the rights of
others. Seen from this perspective Van der Byl AJ erred in suspending
the relevant order. Even though he may
have taken a different view it
was not appropriate for him to prefer his view to that of Froneman J.
[5
4] There
certainly was no case to be made at any stage for a rescission of any
part of Froneman J’s judgment. The learned
judge had correctly
concluded that insofar as the offending structures were concerned and
having regard to the unlawful conduct
of the Shan Trust over the
years, the time for finality had come. The principle of legality, a
cornerstone of the Constitution,
applies to government and governed
alike. Repeat transgressors such as the Shan Trust are undeserving of
the protection afforded
by Van der Byl AJ. Froneman J intended
finality. The effect of Van der Byl AJ’s judgment is
recrudescence.
[5
5] One
remaining aspect calls for attention. The record in the review matter
was prepared by the Shan Trust’s legal representatives.
It
contains a great deal of irrelevant and duplicated matter. The Hobie
Trust’s representatives were not approached timeously
to avoid
this unfortunate result. Counsel representing the Shan Trust conceded
that fault could rightly be attributed to his attorneys
and was
unable to provide a basis for resisting an order that his attorney
should be precluded from recovering from his/her client
such costs
incurred in consequence of those unnecessary portions being
incorporated into the record. In our view, at least a third
of the
record was unnecessary.
[5
6] For
all the reasons set out above, the following order is made:
1. In
Wilma
van Rensburg NO & another v Perapanjakam Naidoo NO & others
(case no 155/09):
(a) the appeal is upheld with costs
including the costs of two counsel.
(b) the order of the court below is
set aside in its entirety and substituted as follows:
‘
The application is dismissed
with costs including the costs of two counsel.’
2. In
Perapanjakam
Naidoo NO & others v Wilma van Rensburg NO & another
(case no 455/09):
(a) the appeal is dismissed with costs
including the costs of two counsel.
(b) the appellants’ legal
representatives are precluded from recovering any costs from the
appellants related to the unnecessary
and duplicated parts of the
record (one third thereof).
_________________
M S NAVSA
JUDGE OF APPEAL
_________________
N Z MHLANTLA
JUDGE OF APPEAL
APPEARANCES:
Case
no 455/09
For
Appellant:
H
J Van der Linde SC
J
D Huisamen
Instructed
by
: Greyvensteins
Nortier Inc, Port Elizabeth
E
G Cooper Majiedt Inc, Bloemfontein
For
Respondent:
O
Rogers SC
M
Euijen
Instructed
by
:
De
Villiers & Partners, Port Elizabeth
Honey
Attorneys, Bloemfontein
Case
no
155/09
For
Appellant: O Rogers SC
M
Euijen
Instructed
by:
De
Villiers & Partners, Port Elizabeth
Honey
Attorneys, Bloemfontein
For
Respondent: H J Van der Linde SC
J
D Huisamen
Instructed by: 1
st
– 5
th
Respondents:
Greyvensteins Nortier Inc, Port Elizabeth
E G Cooper Majiedt Inc, Bloemfontein
6
th
& 8
th
Respondents:
Rushmere Noach Inc, Port Elizabeth
(Abiding with the decision of the
Court.)
7
th
Respondent:
State Attorney, Port Elizabeth
State Attorney, Bloemfontein
1
The judgment of Froneman J is reported as
Van
Rensburg NO v Nelson Mandela Metropolitan Municipality
2008
(2) SA 8
(SE).
2
Initially the grounds on which the Hobie Trust relied were: (a) the
non-compliance with the National Building Regulations and
Standards
Act 103 of 1977, (b) contraventions of Zoning Scheme and Land Use
Planning regulations and (c) the irregular granting
by the
municipality of special consent to use the buildings as part of a
guest house.
3
Op cit
note 1 at para 8.
4
Set out in para 7.
5
The MEC is
a public authority. When she makes decisions affecting particular
holders of title deeds and residents in a township
generally she is
exercising public power. Her decisions in this regard have a direct
external effect.
6
See in this
regard s 6(2)(c) of PAJA. That Act was promulgated in furtherance of
the fundamental right to administrative action
that is lawful,
reasonable and procedurally fair.
7
Buffalo
City Municipality v Gauss and Another
2005 (4) SA 498
(SCA) at paras 7 and 8.
8
Proclamation No 6 of 1998, Provincial Gazette No 323 31 July 1998.
9
Drawn from
Firestone South
Africa (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(A).
10
See para 12
of the judgment.
11
As appears from what is set out in para 25 above Van der Byl AJ
nullified Froneman J’s order setting aside any building
plan
approvals granted by the Municipality in relation to the building
that had already been constructed in the north eastern
corner of erf
105.
12
Uniform rule 45A reads as follows:
‘
The
court may suspend the execution of any order for such period as it
may deem fit.’
13
See
Farlam, Fichardt, Van Loggerenberg
Erasmus
Superior Court Practice
B1-330.
14
Erasmus
Superior Court Practice
B1-330 to B1-330A.