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[2022] ZAGPPHC 572
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PJJ van Vurren Beleggings (Pty) Ltd and Another v Wilds Homeowners Association NPC and Another (89624/2018) [2022] ZAGPPHC 572 (18 July 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 89624/2018
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
YES
18
July 2022
In
the matter between:
PJJ
VAN VUUREN BELEGGINGS (PTY) LTD

APPLICANT
THE
WILDS MANOR HOMEOWERS
ASSOCIATION
NPC

SECOND APPLICANT
and
THE
WILDS HOMEOWNERS
ASSOCIATION
NPC

FIRST RESPONDENT
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY

SECOND RESPONDENT
JUDGMENT
This
Judgment was handed down electronically by circulation to the
parties’ and or parties representatives by email and by
being
uploaded to CaseLines. The date and time for the hand down is deemed
on 07 July 2022.
BAQWA
J:
Introduction
[1]
The applicants seek a declaratory that
Trumpeter’s Loop and Beisa Street in the Wilds Estate, Pretoria
are public roads and
for an order directing the first respondent to
refrain from preventing the applicants access to Trumpeter’s
Loop and Beisa
Street.
[2]
They also seek an order directing the
respondents to allow the applicants unrestricted access to
Trumpeter’s Loop and Beisa
Street and an order in terms of
which the first respondent is ordered to remove the locks at points
“X” “Y”
and “C” depicted on a
diagram of the Wilds Estate.
[3]
Whilst they initially also sought the
removal of the locks at the gates at the junction of Trumpeter’s
Loop and Wonderfontein
Street Shown on “C” they do not
for present purposes persist with seeking an order for the removal of
the lock at “Y”
and the gate at the junction of
Trumpeter’s Loop and Wonderfontein street.
The Parties
[4]
The first respondent is the Homeowners’
Association of the Wilds Estate which is constituted by all the
extensions of Pretorius
Park shown to the North East as “C”,
as well as a portion of extensions 17 to the right thereof being X12,
X13, X14,
X16 and 17 including- the “club house”, X16,
X19 and X20 on “C”.
[5]
The second respondent is the City of
Tshwane Metropolitan Municipality, which does not oppose this
application.
[6]
The land which constitutes Pretorius Park
and is under the control of the first respondent in terms of the
Memorandum of Incorporation
(MOI) is adjoined by X27 which consists
of two portions, the first one being on the south east, marked “C”
and the
second portion marked “Retirement Village”.
[7]
It is the intention of the first applicant
to develop the south eastern portion of X27 which can only be
accessed through two public
roads, namely, Trumpeter’s Loop and
Beisa Street.
[8]
The first applicant who initially intended
to develop X27 as part of the Wilds Estate as indicated in the MOI,
no longer wishes
to do so. The reason for the change of plan is
because the first respondent insists on the first applicant, the
developer, paying
full levies on the undeveloped erven on X27 from
the date of incorporation. The result would be the first applicant
incurring costs
to the tune of R60 million over the period of
development of X27.
Background
[9]
The first applicant was the developer of
the Wilds Estate in the early 2000s and the development included the
streets which are
the subject of this application, namely,
Trumpeter’s Loop and Beisa Streets. As part of the development,
it was envisaged
that X 27 would be added as an extension of the
Wilds Estate and that it would be governed by one HOA.
[10]
In 2013 the law governing the legal status
of erven in a proclaimed township was amended. The effect of the
amendment gave rise
to the following effects; whereas erven in a
proclaimed township had come into existence upon transfer of such
erven to purchasers,
the position changed and erven would come in
to
existence upon proclamation of a township. This meant that if X 27
were to be incorporated into the Wilds Estate, the developer
would
have to pay the full levies for the unsold erven in X 27 during the
development phase of the erven even before they were
transferred to
the purchasers. The development phase was estimated to last about
four years.
[11]
The first respondent locked the applicants’ gate on X 27
at “X” on “C” during 2014. This effectively

denied the applicants access to and from X 27 via Beisa Street. The
first applicant did not react to the closure as there was no
activity
on X 27 at the time.
[12]
During 2016 the first applicant communicated to the first
respondent its intention to develop the south eastern portion of X
27.
The first respondent stated that it would permit access to X 27
through Trumpeter’s Loop on condition that X 27 was
incorporated
as part of the Wilds Estate and the first applicant paid
additional contribution and full levies for it.
[13]
The conditional access caused the first applicant to avoid the
incorporation of X27 to the Wilds Estate as the cost of doing so
would amount to R60 million. The first applicant tried to negotiate a
reduction of the contributions and levies with the intention
that if
the negotiations failed, it would opt to develop X27 as a separate
township.
[14]
X27 was proclaimed as a township on 2 February 2017 and on 7
February negotiations commenced regarding entry to X27 through
Trumpeter’s
Loop and Beisa Street and possible reduction of the
contributions and levies regarding X 27.
[15]
The negotiations were not successful resulting in an urgent
application for a right of way over Trumpeter’s Loop and Beisa

Street. The application was struck off the roll for lock of urgency.
The present application is aimed at enforcing the applicants’

right to access to X27 through Trumpeter’s Loop and Beisa
Streets.
[16]
On 6 April 2017 it was conveyed to the legal services of the
second respondent by the transportation planning division that
“satisfactory
accesses are available to the township and that a
public street system is available to all erven in the township”.
This statement
was made in regard to the streets usable by occupiers
of both the Wilds Estate and X27 and the said streets would be
inclusive
of Trumpeter’s Loop and Beisa Streets.
[17]
The applicants have tendered evidence to demonstrate that they
have requested access from the second respondent to X27 on more than

one occasion but access was refused.
[18]
On 22 May 2017 the applicants’ attorney requested such
access via K54 from the Gauteng Provincial Government but it was
refused
on 25 May 2017. Such request was repeated on 25 May for
access through Erf 1686 from the second respondent which was declined
on
31 May 2017. Instead, the second respondent pointed to trumpeter’s
Loop and Beisa Street as a viable alternative for access
to X27.
[19]
On 3 July 2017 the applicant’s attorney requested second
respondent to assist them regarding access to Trumpeter’s Loop.

On 6 July 2017 the Director Development compliance of the second
respondent requested the Director: Built Environment and Enforcement

Inspectorate of the second respondent to liaise with Metro Police to
open the public road, Trumpeter’s Loop. He further advised
him
that in term of section 63 of the local Government Ordinance, the
public road must be kept open for the community and that
the Wilds
HOA has no right to close the public road, unless they buy the road
or do a security closure as provided for by Act 10
of 1998.
[20]
The applicants’ attorney demanded action from the second
respondent on 13 October 2017 and the second respondent sent a letter

to the first respondent’s attorneys on 30 October 2017 to this
effect:
20.1 X 27 is to be
allowed access through Trumpeter’s Loop, being a public road.
20.2 Final approval of X
27 as a township was granted by the second respondent on the basis
that access to it would be obtained
through Trumpeter’s Loop,
to which the first respondent failed to raise objection during the
public participation period;
20.3 The access
controlled gate which was approved with the establishment of X15
along Trumpeter’s, was not approved to restrict
access of the
public, but was limited to controlled or monitored access which
should not infringe on the rights of members of the
community in
using the public road;
20.4 Denying or
restricting access is illegal, unless such restriction is approved-
by the second respondent in terms of the Rationalisation
of Local
Government Affairs, Act 10 of 1998;
20.5 Should the first
respondent persist in denying access to Trumpeter’s Loop being
a public road, the second respondent
would approach the High Court
for the necessary relief.
[21]
The first respondent did not address the
first applicant’s complaint after receipt of the letter of 30
October 2017 however,
the second respondent did not take the matter
to High Court as promised and the applicants were left with no option
but to launch
these proceedings.
The Respondent’s
Case
[22]
It is the applicants’ contention that
Trumpeter’s Loop and Beisa Streets are public roads and that
contention forms
the foundation of this application.
[23]
Whilst the applicants rely on the
conditions and legal requirements in terms of which the general plan
of Pretorius Park Ext 15
which was formulated together with the
provisions of section 63 of the Local Government Ordinance, 17 of
1939 (The Ordinance) and
the Rationalisation of Local Governance
Affairs Act 10 of 1998, the respondent maintains that when the
township was established
by the second respondent, the township was
motivated as a secure residential estate which included specific
erven allocated
for the control of access to such residential estate.
[24]
The first respondent contends that whilst
second respondent had full knowledge of the fact that unrestricted
access would not be
available to members of the public in regard to
Trumpeter’s Loop and Beisa Street, it nevertheless approved the
township
application and acknowledged the restriction of access. It
further contends that neither Trumpeter’s Loop nor Beisa Street

was constructed and developed “for the use and benefit of the
public” in term of section 63 of ordinance.
[25]
The first respondent argues that such
roads were developed to provide access to the residents of a secure
residential estate, which
the first respondent, as homeowners
association could control for the benefit of the residential estate
ensuring the security of
its members.
[26]
The
first respondent relies for support
Mount
Edgecombe Country Club Estate Management Association II RF NPC v
Singh & Others
[1]
where
the definition of a “public road” was considered, in an
township considered to be a secure residential estate.
[27]
In
the said matter (
Singh)
the
SCA considered the provisions of the National Road Traffic Act
[2]
and the definition of a “public road” contained in
section 1 of the Act which includes “any road”, street
or
thoroughfare or any other place (whether a thoroughfare or not) which
is commonly used by the public or any section thereof
or to which the
public or any section has a right of access…..”
[28]
In the Singh matter the SCA concluded that:
“
[13]
Applying the definition of “public road;” thus
interpreted, to the present case, it seems to me that the roads

within the estate are not public roads. ‘The estate is a
private township. In terms of the township approval; the owner-
shall
construct all the roads in the township to the satisfaction of the
local authority’. The approval further provided;
‘the;
owner of the erf, any further sub-division, or any unit thereon shall
have a general right to access over erven 2888
to 2891 subject to
whatever rules, conditions and restrictions as are laid down from
time to time by the Homeowner’s Association
for the purpose of
ensuring proper control and administration of the use and enjoyment
thereof.”
[29]
At paragraph [14] the court further stated;
“
At
the inception of the estate, the roads within the estate were private
roads. That never changed. The road did not thereafter
acquire the
character of public roads. The estate is enclosed by a 2-meter-high
palisade fence, which is topped with electrified
securing wiring. All
ingress and egress to the estate are strictly controlled. Gated
access points are controlled by security guards.
Visitors are
required to provide the guards with an access code to gain entry to
the estate. In repeat of owners, biometric scanning
is employed…”
[30]
Based on the pronouncement in Singh the
first respondent contends that Trumpeter’s Loop and Beisa
Street are not public roads.
Contractual
Relationship
[31]
It is common cause that the first applicant
is a member of the first respondent and therefore a member of the
estate. As such, so
the first respondent argues, the first applicant
is bound by the rules and regulations prescribed by the first
respondent and premised
on this approach the relief sought would
breach the contractual relationship between the first applicant and
the first respondent.
Interdictory relief
[32]
The first respondent further argues that
the applicants have not made out a case for interdictory relief in
that they have not satisfied
the requisite requirements, namely, a
clear right, irreparable harm and absence of an alternative remedy.
[33]
The first respondent contends that
the relief sought would enable the first applicant to establish
Pretorius Park Ext 27 and make
use of the first respondent’s
access road and security control measures without contributing to the
maintenance thereof.
The applicants’
case
[34]
The first respondent exercises access
control as provided for in Amendment Scheme 9489 of the Pretoria
Town-Planning Scheme 1974
at Trumpeter’s Loop and Beisa Street.
[35]
The applicants contend that the roads
within the Wilds Estate, including Trumpeter’s Loop and Beisa
Street vest in the second
respondent in trust to keep same open in
terms of Section 63 of the Ordinance in that the general plans of
Pretorius Park, in which
the roads had been set apart and appropriate
for the use and benefit of the public and which had been approved by
the Surveyer-General
and filed in the Deeds Office.
[36]
Section 63 of the Ordinance provides;
“
63
(1) The council shall have the control and management of all
(a)
roads, streets, thoroughfares,
bridges, overhead bridges, subways, including foot pavements,
footpaths, side-walks and lanes;
(b)
squares and other open spaces,
gardens, parks and other enclosed spaces;
(c)
culverts and ferries;
(d)
……………
Which have been or
shall be at any time set apart and appropriated by proper authority
for the use and benefit of the public, or
to which the inhabitants of
the municipality shall at any time have or acquire a common right,
and the same shall be vested in
the council in trust to keep same
open (save as is otherwise provided in this Ordinance or any by-law),
and in repair so far as
finances of the council will permit, for the
use and benefit of the inhabitants.
For the use of this
sub-section-
i.
“
The
expression ‘set apart and appropriate by proper authority’
shall mean the filing in the Deeds Office or other registration

office of any general plan of a township, agricultural holdings or
other division of land or any alteration, addiction to or amendment

thereof approved by the Surveyor-General on which are marked such
roads, streets, squares, to which
the public have a
common right of user.”
Analysis
[37]
The first respondent does not deny the
allegation that the general plans of Pretorius Park, in which had
been the set apart and
appropriate the roads within Pretorius Park,
for the use and benefit of the public, and which had been approved by
the Surveyor-General
had been filed in the Deeds Office. This is so,
despite the first respondent’s denial of the allegation that
Trumpeter’s
Loop and Beisa street are public roads as contended
by the first applicant.
[38]
It is common cause that erven 1292 and 1296
as depicted on “C” and “A5” had been
earmarked for access control
but that does not render Trumpeter’s
Loop a private road. In terms of the amendment scheme the first
respondent is entitled
to erect control facilitates on the said erven
to control access but not restrict access. Restriction of access may
only be exercised
in terms of sections 43 to 47 of Act 10 of 1998.
[39]
Logic dictates that, if Trumpeter’s
Loop had been a private road, such as in Singh case, Act 10 of 1998
would not apply, and
the Amendment Scheme would have been unnecessary
as the first respondent would have been at liberty to deal with
access of visitors
to its private property as it deemed fit. In that
case the security erven would not have existed.
[40]
The applicable portions of Act 10 of 1998
provide as follows;
“
2
purpose
1)
The purpose of this Act is to
rationalise the legislative and administrative framework within which
the local sphere of government
may conduct its affairs in relation
to, amongst other things
-
a)
Determining and standardising the
status, powers, functions, and duties of a municipal council;
b)
………
c)
………
.
d)
Enabling municipalities to
effectively conduct their affairs, more particularly with regard to
the procurement of goods and services,
the execution of works and the
conducting of access to public places.
2)
……………
3)
Application of the Act
I)
Any person applying or interpreting
this Act must-
a)
Give a construction of its
provisions in a manner that-
i)
Is, consistent with the statements
of purpose set out in section 2; and …...”
[41]
Section 1 of Act 10 of 1998 defines
“public places” as “any road, street, thoroughfare,
bridge, overhead bridge
part or enclosed space (amongst more) vested
in a municipality and includes any road, place or thoroughfare which
is in the undisturbed
use of the public or which have the right to
use”.
[42]
Section 43 of Act of 1998 provides:
“
43
A Municipal Council’s power to restrict/access.
For purposes of
enhancing safety and security, a municipal council may-
a)
On its own initiative impose a
restriction on access to any public place if it complies with the
provisions of section 44; or
b)
Authorise any person, body or
organisation to restrict to access to any public place if the
provisions of section 45 have been complied
with.”
[43]
Section 46(1) of Act 10 of 1998 authorises
restriction of access for no longer than two years unless a municipal
council has extended
the duration in terms of section 46(2) of the
Act.
[44]
Section 25(1) of the Bill of Rights in constitution provides:
“
No one may be
deprived of property except in term of law of general application,
and no law may permit arbitrary deprivation of
property”.
[45]
It cannot be disputed that the roads vest in the respondent in terms
of section 63 of the ordinance
and that X27 was approved as a
township with Trumpeter’s Loop as the public access road. The
first respondent is bound by
that decision in the absence of review
proceedings to set it aside by the first respondent.
[46]
In terms of section 43 (a) of Act 10 of 1998 the second respondent is
entitled on its initiative
to impose a restriction regarding access
to access any place but in order to do so, it has to comply with the
provisions of section
44 of Act 10 of 1998 which provides as follows:
“
44
(1) when intending to impose the restriction on access to a public
place, a   municipal council must:
a)
Determine the proposal terms of the
restriction after consultation with the South African Police
Services;
b)
Pass a resolution confirming the
proposed terms and resolve to impose the restriction; and thereafter,
c)
Comply with the following procedure:
i)
The intention to impose the
restriction must be announced by notice in the Provincial Gazette and
where these exist, in one or more
newspapers circulating in the area
concerned; …
ii)
……
iii)
At any time before imposing the
restriction, consultations with any relevant interest group may be
held in any form, including the
holding of an enquiry; and
iv)
…………
..”
[47]
No evidence has been tendered by the first respondent that it has
complied with any of the requirements
prescribed in Act 10 of 1998 or
that an authorisation has been extended in terms of section 46 (2) of
Act 10 of 1998. There is
therefore no legal basis to justify the
restrictions imposed by the first respondent.
[48]
It is common cause that Trumpeter’s Loop and Beisa Street do
not form part of the individual
properties in The Wilds Estate and
have no description as property units. The only feasible way to
convert these streets to private
roads would be for the first
respondent to purchase them, in which event they would be given erf
numbers by the Deeds Registry
to enable them to be transferred to the
first respondent.
[49]
The first respondent also raises the issue of security but this is
not relevant to the decision
whether Trumpeter’s Loop and Beisa
Streets are public roads or not. Regarding maintenance thereof, the
applicants have indicated
their willingness to contribute their
prorata share to share to the costs of security services.
[50]
The first respondent has let it be known that it would “allow”
the applicants access
to Trumpeter’s Loop and Beisa Streets
provided X27 is incorporated as part of The Wilds Estate and the
first applicant pay
full levies in respect of all the erven on X27.
[51]
The first respondent’s preferred option has however become a
non-issue because the first
applicant has chosen not to incorporate
X27 into The Wilds Estate to avoid paying levies to the tune of R60
million rands after
negotiations to reduce the levies or
contributions in respect of the security services between the parties
had broken down.
[52]
It is also common cause that all the buildings on The Wilds Estate
which was constructed by the
first applicant were built by
contractors who gained access through gate 1 on of the Wilds Estate
and at that time, the intention
was to build X27 as part of the Wilds
Estate. Even though circumstances have changed, the further
construction on X27 would be
no different and no more than access
would be required.
K 54 Road Reserve
[53]
It has been suggested that access could be gained by the applicants
through the access road known
as K54. Correspondence between
applicants’ attorneys and the second respondent shows that
access through K54 had been refused
by the second respondent to the
applicants’. Moreover, K54 is a road reserve for the planned
construction of a future public
road and cannot be re-purposed in
order to accommodate the first respondent’s unlawful
restriction of access to Trumpeter’s
Loop as a public road.
Reliance on the
Singh decision
[54]
The respondent has placed great reliance on the Singh decision but it
is evident from the discussion
above that the said decision is
distinguishable from the facts of the present case. The roads in the
Singh decision were private
roads and they were part of the estate.
Demonstrably and in terms of the law Trumpeter’s Loop and Beisa
Streets are not part
of The Wilds Estate. This is a fact which is
confirmed in correspondence by the second respondent which is the
responsible and
accountable local authority.
Condonation
[55]
The first respondent filed its answering affidavit out of time and it
has applied for condonation
of the late filing which the applicants’
have not opposed due to the fact that they also filed their replying
affidavits
out of time.
[56]
The reason for the late filing of the answering affidavit was that
the first respondent awaited
the outcome of the Singh decision from
the Supreme Court of Appeal which, according to the first respondent
would be critical for
its defence in the application.
[57]
In my view there is no prejudice caused to any of the parties by the
late filing of the documents
mentioned above and in the absence of
any opposition, condonation ought to be granted.
Conclusion
[58]
The first respondent’s attorneys were informed by the second
respondent on 30 October 2017
in unequivocal terms that X27 was to be
allowed access through Trumpeter’s Loop, (and by necessary
application) Beisa Street,
being a public road. This assertion was
further supported by a statement to the effect that final approval of
X27 as a township
was granted by the second respondent on the basis
that access to it would be obtained through Trumpeter’s Loop to
which the
first respondent failed to raise an objection during the
public participation period.
[59]
In the absence of an application to review the second respondent’s
decision, it does not
appear that the first respondent’s
defences are sustainable.
[60]
In light of the above, I conclude that the applicants have made out a
proper case for the relief
sought and I make the following order:
Order
[61]
61.1 The late filing of the answering affidavit and replying
affidavit is condoned.
61.2 It is declared that
Trumpeter’s Loop and Beisa Street in The Wilds Estate,
Pretoria, are public roads;
61.3
The first respondent is ordered and directed to refrain from
preventing the applicants, their members
(including their visitors),
their suppliers, their con¬trac-tors and their employees
(including their agents) to access Trumpeter’s
Loop at gates 1
and 2, as well as Beisa Street;
61.4
The respondents are directed to allow unrestricted access to the
applicants to Trumpeter’s Loop
and Beisa Street;
61.5 The first respondent
is ordered to remove within 7 (seven) days from this order its locks
from the gate at “X”
on plan “C”; failing
which the applicants are granted leave to remove the locks and the
gate; alternatively, to obtain
the assistance of Metro Police to give
effect to this order.
[62]
The first respondent is ordered to pay the costs of this application.
SELBY
BAQWA
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of hearing:       7 February 2022
Date
of judgment:    18 July 2022
Appearance
On
behalf of the Applicants                                 Adv

A.F Arnoldi
Cell 082 417 7780/
012 424 400
Instructed
by                                                       Geldenhuys

& Meyer Attorney
Email:
arnoldi@lawcircle.co.za
On
behalf of the Respondents                            Adv

R du Plessis SC
Cell 083 225 7134/
012452 8700
Instructed
by                                                       Weavind

& Weavind Attorneys
Email:
adriaanventer@me.com
[1]
2019
(4) SA 471
SCA.
[2]
Road
Traffic Act 93 of 1996
.