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[2017] ZAGPPHC 141
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Meyer v Celtisdal Extension 20 Homeowners Association NPC and Another (Residents of Heuwelsig Estate Celtisdal Intervening) (14606/2017) [2017] ZAGPPHC 141 (17 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 14606/2017
17/3/2017
Not
reportable
Not
of interest to other judges
Revised.
In
the application between:
RENIER
STEPHANUS
MEYER
Applicant
and
CELTISDAL
EXTENSION 20 HOMEOWNERS
ASSOCIATION
NPC
(REGISTRATION
NO: 2004123722/08)
First Respondent
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
Second Respondent
RESIDENTS
OF HEUWELSIG ESTATE
CELTISDAL
Intervening Parties
JUDGMENT
DAVIS,
AJ:
[1]
This is one of almost 50 urgent applications which came before this
court during this week. The matter was heard earlier in
the week and
I reserved judgment until today, Friday 17 March 2017.
[2]
The Applicant is the owner of two erven known as Erf [...]4 and Erf
[...]5 Celtisdal Extension 20 which erven are situated within
the
Heuwelsig Estate in a suburb of Pretoria. The First Respondent is the
Homeowners Association of residents of the Heuwelsig
Estate, being a
non-profit company. The Second Respondent is the City of Tshwane
Metropolitan Municipality within whose area of
jurisdiction the
estate is situated.
[3]
The Applicant intends developing the two erven by erecting second
dwellings on each of them. The even are residential properties
and
from the plans submitted and which had been approved by the Second
Respondent's various divisions, including the City Planning
and
Development Committee, it appears that each of the two dwellings to
be erected on each of the two erven comprise of 3-bedroom
units with
double garages and open plan living areas.
[4]
Prior to the approval of the building plans, the Applicant has
submitted the required applications for permission to erect a
second
dwelling house as long ago as 4 October 2013. The applications were
duly advertised and, in respect of Erf [...]4, three
residents in the
Heuwelsig Estate lodged objections. In respect of Erf [...]5, two of
these three objectors also lodged objections.
The objections were
replied to by the Applicant. After having considered the nature of
the stands, the proposed dwellings, the
Heuwelsig Estate, the
Integrated Development Plan and Compaction and Densification Strategy
of the City of Tshwane Metropolitan
Municipality, the available
Amenities and Services, the Regional Special Development Framework
for the area, the reports of the
Departments of Water and Sanitation,
Water Engineering Services, Energy and Electricity, Roads and
Transport, Transportation Planning
and previous Council and Mayoral
Committee resolutions in line with frameworks, policies and
strategies as approved by the City
of Tshwane, the necessary consents
were granted on 12 July 2016.
[5]
Subsequent to this, the building plans were submitted and separately
and independently approved at the end of 2016. The plans
were also
submitted to the First Respondent and consent was given by an
official thereof.
[6]
Upon the attempted commencement of inspection of the erven for
purposes of site establishment by the Applicant and its contractors,
its free and undisturbed access to the erven was spoliated by the
First Respondent who had through various actions,
inter alia
the
confiscation of access cards and the disablement of fingerprint
recognition systems necessary for access to the estate prevented
the
Applicant and his wife from granting access to contractors to the
erven. The spoliation went so far as to only allow personal
access of
the Applicant and his wife and then only when accompanied by security
guards.
[7]
Despite a flurry of correspondence, unfettered access was not
restored, leading to the current spoliation application. Initially
the First Respondent opposed the matter but, subsequent to a meeting
of the board thereof and obtaining legal advice, the opposition
was
withdrawn.
[8]
At the hearing of the application however,
"residents of
Heuwelsig Estate"
sought to intervene. The basis of the
intervention was that a review application was launched for the
review of the approvals referred
to above. The basis of the review of
the First Respondent's consent was that there was no indication that
the official who had
granted the consent had been delegated in
writing by the general manager to do so. The basis of the review of
the Second Respondent's
approval was that the objectors had not been
informed of the approval prior to the exercise of the rights obtained
as a result
of the approval within 28 days from date thereof and that
thereby the "residents" had been deprived of their
procedural
rights of an appeal against the approval. This review
application was served on 13 March 2017, that is a day before the
urgent
application. In it, an interdict preventing the commencement
of building operations is also sought. This application for interdict
and for review was however not yet ripe for hearing and has not been
set down and neither was it enrolled before me.
[9]
In the application for intervention, the residents of the Heuwelsig
Estate also request a postponement of the urgent application,
pending
their filing opposing papers and the matter being heard in due
course.
[10]
I have considered the application for intervention and in my view it
should not succeed for the following reasons:
10.1. The residents of
the Heuwelsig Estate are represented by the First Respondent, a body
which represents all the residents of
the estate, comprising some
1200. The residents who now seek intervention are only 12.
10.2. The 12 residents
have not been individually cited in their application for
intervention and have simply been cited as a group
of people as if a
voluntary association with
locus standi.
10.3. Although the group
of people or individuals comprising it may have concerns regarding
the proposed construction, they cannot,
by their intervention
application and proposed opposition to the Applicant's application
effectively perpetuate the spoliation
perpetrated by the First
Respondent and which the First Respondent had already conceded by way
of the withdrawal of its opposition.
10.4. There is no direct
and substantial interest justifying intervention or joinder in the
spoliation application itself.
[11]
I have considered whether a grave injustice will result if the urgent
application is not immediately stayed and postponed.
In this context
I had regard to the following:
11.1. The Intervening
Parties' purported basis of review against the consent granted by the
First Respondent appears to be spurious.
Nothing of substance turns
on the fact whether a head of a department rather than the general
manager had granted the requisite
consent in the absence of an
allegation by the First Respondent that no such consent should have
been granted, either procedurally
or on the merits thereof. Insofar
as this is simply a contractual issue relating to the MOI of the
First Respondent, any such breach,
if it occurred has been condoned
by the First Respondent by its conduct.
11.2. The
gravamen
of
the objectors' objection against the consent granted by the Second
Respondent and which they allegedly seek to pursue by way
of an
appeal against the granting of consent are the allegations that their
own property values might be decreased, that the
"theme"
of their properties would be compromised and that there would be
"too much traffic and lack of discipline if the second
dwellings are erected and our children will not be
safe
in
such
a
congested environment' .
Apart from the fact that
these aspects have been far more extensively and in detail examined
and considered by the Second Respondent
and its various departments,
it is difficult to conceive how two additional dwellings in an estate
comprising hundreds of erven
could lead to this result. There are in
any event already many other subdivided erven and dual residences and
it has not been suggested
that the additional two proposed by the
Applicant would be the proverbial “
last straw” .
There
appears to be little prospect of success in the review of the appeal.
11.3. The rights of the
Applicant not to be spoliated outweigh the abovenamed considerations
now raised by the Intervening Parties.
11.4. The Intervening
Parties have an alternate remedy namely the pursuit of their separate
application for interdict and review,
should they be so advised and
the order to be granted would be limited so as not to oust this
possibility.
[12]
In the premises the application for intervention and joinder by the
"residents of Heuwelsig Estate"
is refused.
[13]
In the exercise of my discretion and considering the nature of the
First Respondent's conduct referred to above regarding the
spoliation
of the Applicant's unfettered rights of access to his properties, I
consider that costs on the scale as between attorney
and client
should be allowed which costs order should follow the success of the
event.
ORDER:
[13]
In the premises I grant an order in terms of a draft which I have
amended and marked "X" and which now reads as follows:
1. The First Respondent
is ordered to restore unrestricted access to the Applicant, his wife
and any unauthorised contractor or
worker attending to any
construction activities or related activities on Erven [...]4 and
[...]5 Celtisdal Extension 20;
2. The First Respondent
is ordered to pay the costs of the application on a scale as between
attorney and client
________________________
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing:
14 March 2017
Judgment
delivered:
17 March 2017
Counsel
for Applicant:
Attorneys
for Applicant:
DP Du Plessis
Inc
Counsel
for Respondents:
Attorneys
for Respondents:
Mashamba Inc
Counsel
for Intervening Parties:
Attorneys
for Intervening Parties: Nchupetsang Attorneys