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[2017] ZASCA 79
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Serengeti Rise Industries (Pty) Ltd and Another v Aboobaker NO and Others (845/2015) [2017] ZASCA 79; 2017 (6) SA 581 (SCA) (2 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 845/2015
In
the matter between:
SERENGETI
RISE INDUSTRIES (PTY) LTD
FIRST APPELLANT
eTHEKWINI
MUNICIPALITY
SECOND APPELLANT
and
TAYOB
NAZEER ABOOBAKER NO
FIRST RESPONDENT
FAREEDA
ABOOBAKER NO
SECOND RESPONDENT
CADOGAN
GARDEN SHARE BLOCK (PTY) LTD
THIRD RESPONDENT
39TH
STREET INVESTMENTS 86 SHAREBLOCK
(PTY)
LTD
FOURTH
RESPONDENT
311
BODY
CORPORATE
FIFTH RESPONDENT
SURREY
MANSIONS BODY CORPORATE
SIXTH RESPONDENT
Neutral
Citation:
Serengeti
Rise Industries (Pty) Ltd & another v Aboobaker NO & others
(845/2015)
[2017] ZASCA 79
(2 June 2017).
Coram:
Shongwe
ADP and Ponnan and Dambuza JJA and Coppin and Schippers AJJA
Heard:
10
May 2017
Delivered:
2 June 2017
Summary:
Administrative
law: validity of a demolition order granted as just and equitable
remedy: order granted pursuant to a finding that
Municipality
decisions approving rezoning of property and approving building plans
were unlawful: order vitiated by failure to
set the approval
decisions aside, failure to specify portion(s) of the building to be
demolished, and failure to exercise discretion
in determining just
and equitable remedy: court order found to lack clarity and
certainty.
ORDER
On
appeal from
KwaZulu-Natal
Division the High Court, Durban (Steyn J sitting as court of first
instance).
1
The appeal is upheld with costs including the costs of two counsel;
2
The order of the high court is set aside and is replaced with the
following:
‘
The
application is dismissed with costs including the costs of two
counsel where so employed.’
JUDGMENT
Dambuza
JA (Shongwe ADP and Ponnan JA and Coppin and Schippers AJJA
concurring):
[1]
The issue in this appeal is the validity of a demolition order
granted by the KwaZulu-Natal Division of the high court, Durban
(per
Steyn J) (high court). The appeal is with the leave of this court.
[2]
The judgment of the high court was made pursuant to an application,
brought by the six respondents, seeking that three decisions
made by
the second appellant, the eThekwini Metropolitan Municipality
(Municipality), be reviewed and set aside and that a ‘just
and
equitable remedy’ be granted in their favour. The impugned
decisions related to the rezoning, by the Municipality, of
the first
appellant’s immovable property situated at 317 Currie Road,
Berea, Durban (the property),and its approval of two
sets of building
plans for a building to be erected on that property.
[3]
The six respondents own and/or represent owners of immovable
properties located within close proximity to the property. The
first
and second respondents, being husband and wife, are Trustees of the
Fareeda Aboobaker Family Trust, which owns an abutting
neighbouring
property located at 311 Currie Road. The first respondent is also the
chairman of the 311 Currie Road Body Corporate
(the fourth
respondent). The third, fifth and sixth respondents are Cadogan
Gardens Share Block (Pty) Ltd, 39
th
Street Investments, 86 Shareblock (Pty) Ltd, and the Surrey Mansion
Body Corporate.
[4]
The first appellant, Serengeti Rise Industries (Pty) Ltd (Serengeti)
acquired the property in 2009. In August 2010 the Municipality
approved the first building plans in terms of which Serengeti was to
build a four storey residential apartment development on the
property. At that time the property was zoned General Residential 1
(GR1) in terms of the Durban Town Planning Scheme Regulations
(the
scheme). On 12 December 2011, whilst construction under the 2010
building plans was underway, the Municipality approved an
application
by Serengeti for rezoning of the property from the GR1 to a General
Residential 5 (GR5) zone. The rezoning was approved
despite written
objections from the third, fifth and sixth respondents.
[5]
Thereafter, on 6 March 2014, the Municipality approved further
building plans (deviation plans) for the development of a nine
storey
building, comprising 12 residential apartments. Over the ensuing
period of approximately seven months a six storey building,
with a
bulk of 9 786 square metres (compared to the maximum of 1 800
square metres and four storeys allowed under a GR
1 zoning) emerged
on the property. The rezoning approval together with approval of the
deviation plans by the Municipality form
the subject of this dispute.
[6]
The respondents launched the challenge to the Municipality’s
aforementioned decisions on 16 October 2014. By that time
the
building had reached six storeys in height. Construction only ceased
when the shell of the building was seven storeys high
and the
concrete slab of what would have been the eighth floor had already
been cast. The respondents contended that the approval
of the
rezoning application and deviation plans were made in conflict with
the Municipality’s policy which provided that
only buildings
that conformed to GR1 and GR2 zoning would be allowed in the
Berea-Musgrave area of the Municipality. They asserted
that the
process which preceded the approvals had been unfair as they had not
been given proper notification thereof.
[7]
In opposing the application, Serengeti and the Municipality (the
appellants) contended, as a starting point, that the challenge
to the
rezoning decision, having been brought only in October 2014, fell
foul of the provisions of s 7(1) of the Promotion
of
Administrative Justice Act, Act 3 of 2000 (PAJA).
[1]
They took issue with the fact that the respondents had made no
substantive court application, under s 9(b) of PAJA, for an
extension of time within which to launch their review application.
[2]
They insisted that the decisions had been properly made, in
compliance with the applicable laws and procedures.
[8]
The high court accepted the first and second respondents’
explanation that they had launched the proceedings as soon as
they
reasonably could, within four months of obtaining the information
they had needed to challenge the lawfulness of the relevant
decisions.
[3]
There was no explanation by the other respondents for their delay in
challenging the approvals. Nevertheless, the high court, relying
on
the principle of legality, found that there had been no unreasonable
delay on the part of the respondents in bringing the review
application. The court also found that the rezoning approval was
unlawful and invalid, mainly because the purported notification
to
the public did not meet the requirements of the KwaZulu-Natal
Ordinance 27 of 1949 (the Ordinance), and further, that the
Municipality
had failed to comply with the provisions of s 7(1)
(b)
of
the National Regulations and Building Standards Act 103 of 1977
(Building Standards Act).
[4]
Consequently, the approval of the 2014 deviation plans, based on the
unlawful rezoning, was also found to be unlawful and invalid.
Accordingly, the portions of the building that did not accord with
the original (2010) building plans were found to be illegal;
hence
the demolition order.
[9]
In this appeal the third responded has elected to abide by the
decision of this court. Extensive submissions were made on whether
the rezoning approval fell to be reviewed under PAJA or whether it
was an executive decision requiring only compliance with the
legality
principle as the high court found. The appellants insisted that both
decisions were administrative decisions and that
the review together
with the alleged delay had to be considered under s 7(1) of
PAJA. I may add that although the decision
of the high court on this
issue was founded on the principle of legality the learned judge also
found that both the rezoning and
the deviation plans approval were
administrative decisions.
[5]
[10]
The second leg of the appeal was that the ‘draconian’
demolition order was not justified and that the high court’s
approach when considering the remedy was erroneous in that it failed
to exercise its discretion as envisaged in s 172(1)
(b)
of the Constitution and s 8 of PAJA. The appellants contended
that, in granting the demolition order, the high court disregarded
the fact that the approved building plans conformed with the zoning
for that property.
[11]
In my view, the insurmountable problem for the respondents in this
appeal lies with the order granted by the high court. In
relevant
part the order reads: ‘The development on the property situated
at 317 Currie Road that exceeds GR1 zoning be demolished’.
This
order is unsustainable for a number of reasons.
[12]
Firstly, although in its reasons the high court found that the
rezoning and deviation approvals were invalid and should be
set
aside, it made no order(s) to that effect. The court therefore
granted a remedy of a consequential nature without granting
the
primary relief sought. However, the consequential relief depended
upon the rezoning and plan approval by the Municipality being
reviewed and set aside. Until set aside, they remained valid and have
legal effect.
[6]
The building
thus complied with building and zoning approvals of the Municipality
that remained extant. The demolition order was
thus incompatible with
those extant decisions. Moreover, the court’s findings or
reasons are not appealable. Apart from the
trite legal principle that
an appeal lies against an order of court and not the reasons,
[7]
the practical reality is that only the order granted would be
recorded by the Registrar in the document that would be served or
executed by the Sheriff and not any conclusions appearing in the
reasoning of the court below.
[13]
Secondly, the order lacks certainty and clarity. On a plain reading
of the order only the portion of the building that ‘exceeds
GR1
zoning’ will have to be demolished. There is no description of
that portion. This is not surprising, as no evidence,
expert or
otherwise, was led in the high court in this regard. There was also
no evidence on whether the structural integrity of
the building could
survive the execution of the partial demolition order.
[8]
In the end the demolition order lacked clarity and certainty. It
would appear that the only way it could be executed would be the
demolition of the entire building. And, the court below did not give
any consideration to the constitutional proportionality of
that
remedy.
[14]
The submission, on behalf of the first and second respondents, that
plans could be drawn up for the purpose of executing the
demolition
order, is untenable. Counsel for the fifth and sixth respondents
explained that these respondents had envisaged that
the matter would
follow the two stage procedure envisaged in
AllPay
v Chief Executive Officer
.
[9]
However, the high court was of the view that the ‘piecemeal
approach’ would be undesirable and time consuming’.
[15]
The final reason why the order of the high court cannot stand is the
failure by the court a quo to exercise its discretion
in considering
the order to be made. As submitted on behalf of the appellants the
court’s power to grant constitutional remedies
is broad and
flexible. The court may grant an order that is just and equitable and
the terms of the order are determined within
the context of each
case.
[10]
[16]
The learned judge reasoned that:
‘
.
. . the relief should be in line with the findings. What remains
valid is that part of the building that was built in terms of
the GR1
zoning and the plan approved by the [Municipality] on 30 August 2010.
There is an obligation on this court to uphold the
law. This court by
operation of the legality doctrine is bound to order that the part of
the structure that is illegal be demolished.’
[17]
Reliance was placed on
Lester
v Ndlambe Municipality and Another.
[11]
The court held that: ‘
I
understand
Lester
to direct that once a court has made a finding that a structure is
illegal, the jurisdictional basis for a demolition has been
proved.
Once a ground for review under PAJA has been established then this
court has to deal with its consequence. In terms of
section 172(1)(a)
of the Constitution the administrative action by the Municipality has
to be declared unlawful.’
[18]
This
reliance on
Lester
was misplaced. In
Lester
,
the building in respect of which the high court had issued a
demolition order had been constructed without any approved building
plans. The demolition order was sought by the Municipality in terms
of s 21 of the Building Standards Act, which empowers
a
magistrate, on application by a local authority or the Minister, to
authorise such local authority or Minister to demolish a
building, if
the magistrate is satisfied that its construction does not comply
with the provisions of that Act. In any event,
Lester
must now be read in the light of the subsequent judgment of this
court in
BSB
International
(Pty)
Ltd v Readam South Africa
(Pty)
Ltd.
[12]
[19]
Remedies provided for under s 8 of PAJA and under common law
must be construed as giving effect to and promoting constitutional
rights. Sections 38 and 172 of the Constitution enjoin courts to
grant case appropriate remedies. The principle is that:
‘
.
. . invalidity under the Constitution, as was the case with voidness
under the common law, is a relative concept. It is, firstly,
subject
(in the administrative-law context) to a determination by the court
whether a ground of review is present. Secondly (in
the event that a
ground of review is present) a court has to determine what the
consequences of such determination are. A finding
that the action in
question is invalid (because a ground of review is present) will not
necessarily mean that the action is to
be set aside or declared
invalid with retrospective effect or even at all. Especially in the
case of delegated legislation which
authorises administrative action,
a retrospective declaratory order of invalidity could have extremely
disruptive effects (especially
where a number of actions had already
been taken in terms of such legislation).’
[13]
The
high court therefore erred in adopting an approach that it was
compelled to issue the demolition order that it did.
[20]
Regarding costs, the respondents were not public interest
litigants.
[14]
The review was motivated by a desire to protect property rights and
advance private interests. I can find no reason as to why the
costs
of appeal should not follow the result.
[21]
Consequently the following order is granted:
1
The appeal is upheld with costs including the costs of two counsel;
2
The order of the high court is set aside and is replaced with the
following:
‘
The
application is dismissed with costs including the costs of two
counsel where so employed.’
_________________
N DAMBUZA
JUDGE
OF APPEAL
APPEARANCES:
For
the First Appellant: C D A Loxton SC;
C F van der Merwe SC
Instructed by:
Norton Rose Fulbright SA
Inc
c/o Webbers, Bloemfontein
For
the Second Appellant: G F Marcus SC; M du Plessis
Instructed by:
Livingston Leandy Inc ,
La Lucia Ridge
c/o McIntyre & Van
der Post, Bloemfontein
For
the First, Second and
Fourth
Respondents: N
Cassim SC; G F Porteous
Instructed by:
Saley Laher Hoosen Inc,
Johannesburg
c/o
Honey Attorneys, Bloemfontein
For
the Fifth and Sixth
Respondents
K J Kemp SC; H S Gani
Instructed by:
Theyagaraj Chetty
Attorneys, Durban
c/o
Honey Attorneys, Bloemfontein
[1]
The section provides that:
‘
(1)
Any proceedings for judicial review in terms of section 6(1) must be
instituted without reasonable delay and not later
than 180 days
after the date –
(a)
…
(b)
On which the person concerned
was informed of the administrative action, became aware of the
action and the reasons for it or
might reasonably have been expected
to have become aware of the action and the reasons.’
[2]
The section
provides variation of time within which the period of 180 prescribed
for institution of review proceedings may be
extended. Such
extension may be achieved by either agreement between the parties or
by a court on application by the person or
administrator concerned.
The court may grant such an extension where the interests of justice
require.
[3]
It was the first and second
respondent’s case that they could not have challenged the
approvals without having regard to
the record of the Municipality’s
decision. Their delay resulted from the delay by the Municipality in
furnishing them with
that information.
[4]
Section 7(1)
states: ‘
Approval
by local authorities in respect of erection of buildings.
—(1) If
a local authority, having considered a recommendation referred to in
section
6 (1) (
a
)
—
(
a
)
is satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant its approval in respect thereof;
(
b
)
(i) is not so satisfied; or
(ii)
is satisfied that the building to which the application in question
relates—
(
aa
)
is to be erected in such manner or will be of such nature or
appearance that—
(
aaa
) the
area in which it is to be erected will probably or in fact be
disfigured thereby;
(
bbb
) it
will probably or in fact be unsightly or objectionable;
(
ccc
) it
will probably or in fact derogate from the value of adjoining or
neighbouring properties;
(
bb
)
will probably or in fact be dangerous to life or property,
such
local authority shall refuse to grant its approval in respect
thereof and give written reasons for such refusal.
Although
the high court also found that provisions of s 7 (1) of the Act had
also not been satisfied the finding of inadequate
notification to
members of the public was the main reason for the order ultimately
granted by the high court.
[5]
Section 237 of the Constitution
provides that all constitutional obligations must be performed
diligently and without delay.
[6]
Oudekraal Estates (Pty) Ltd v City
of Cape Town and others
2010
(1) SA 333.
[7]
Administrator, Cape, and Another v
Ntshwaqela and Others
1990
(1) SA 705
(A) at 714J-715E;
Neotel
(Pty) Ltd v Telkom SA SOC Ltd and others
(605/2016)
2017 ZASCA 47
(31 March 2017).
[8]
BSB International (Pty) Ltd v
Readam South Africa
(Pty)
Ltd
[2016] ZASCA 58
at para 29.
[9]
See
AllPay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer of the South African Social Security
Agency
2014 (4) SA 179
(CC);
AllPay
Consolidated v Investment Holdings (Pty) Ltd v Chief
Executive Officer of the
South African Social Security Agency
2014
(1) 604 (CC).
[10]
Section 172 of the Constitution.
[11]
Lester v Ndlambe Municipality and
Another
(514/12) [2013]
ZASCA 95; [2014] 1 All SA 402 (SCA); 2015 (6) SA 283 (SCA).
[12]
See fn 8 above.
[13]
J R de Ville;
Judicial
Review of Administrative Action on South Africa
(2003) at 331.
[14]
Biowatch Trust v Registrar Genetic
Resources and Others
2009
(6) SA 232
(CC).