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[2017] ZAKZPHC 20
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Renken and Another v Kwadukuza Municipality and Others (9234/15) [2017] ZAKZPHC 20 (30 May 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 9234/15
In the matter between:
MARTIN
BRUCE
RENKEN FIRST
APPLICANT
IM
A RENT COLLECTOR (PTY)
LTD
SECOND
APPLICANT
and
KWADUKUZA
MUNICIPALITY FIRST
RESPONDENT
MENLYN MAINE
INVESTMENT HOLDINGS (PTY) LTD
SECOND
RESPONDENT
FLANAGAN &
GERHARD INVESTMENTS (PTY) LTD
THIRD
RESPONDENT
KWAZULU-NATAL
DEPARTMENT OF TRANSPORT
FOURTH
RESPONDENT
MEMBER OF THE EXECUTIVE COUNCIL FOR
TRANSPORT,
COMMUNITY SAFETY & LIAISON,
KWAZULU-NATAL FIFTH
RESPONDENT
Date of Hearing: 18 May 2017
Date of Judgment: 30 May 2017
ORDER
The following order is
granted:
The
applicants are ordered to pay the costs of all the respondents.
JUDGMENT
D.
Pillay J:
Introduction
[1]
This
application, launched in July 2015 to review and set aside certain
approvals for the development of a mall, has become moot.
The only
remaining issue for determination is liability for costs of the
application.
[2]
When
litigation becomes moot the usual order regarding costs is that each
party pays its own. This is to avoid incurring further
costs and
burdening the already overstretched resources of the court with
having to adjudicate the substantive issues merely to
determine the
liability for costs. In this matter the pleadings exceed 1006 pages.
Counsel assisted the court in narrowing down
the material to be
covered for which I am indebted.
Applicants’
Review
[3]
The
relief that the applicants sought in their amended notice of motion
was first to interdict and restrain any building work in
the
development of the Ballito Junction Shopping Mall (Ballito Mall)
until all conditions in the building plans had been fulfilled.
Second, the applicants sought to review, declare unlawful and set
aside the first respondent Municipality’s approval of the
Site
Development Plan pertaining to the Ballito Mall, any other approvals
granted in terms of the National Building Regulation
and Building
Standards Act, 103 of 1977 as well as approvals relating to the
access road or its rezoning. The applicant contended
that the
approvals were unlawful first, because the second respondent Menlyn
Maine Investment Holdings (Pty) Ltd and the third
respondent Flanagan
& Gerhard Investments (Pty) Ltd (collectively referred to as ‘the
Developers’) had not complied
with one of the conditions
precedent for the approval of the development namely the rezoning of
the link road as a public road.
The rezoning entitled the applicant
and other interested persons to participate in the process, of which
they were consequently
deprived. Furthermore, by approving the
development when the condition had not been complied with the
Municipality violated the
town planning scheme.
[4]
Second,
the fourth respondent, the KwaZulu-Natal Department of Transport (KZN
DOT), had not finally reviewed or approved the traffic
impact
assessment, the access and the detailed drawings for the proposed
development. Its ‘in principle approval, subject
to final
consideration and approval’ was inadequate.
[5]
To
determine whether the applicants are entitled to their costs the
court must assess whether they had any prospects of success
for
obtaining the order they sought when they launched the review.
Hence I investigate first whether the applicants had good
cause to
challenge the decisions of the Municipality. Irrespective of the
answer to the first question, the second question I consider
is
whether the remedy the applicants sought was appropriate.
Did
the applicants have good cause to review the decisions of the
Municipality when they launched the application?
[6]
This
issue depends mainly on whether the conditions were precedent, that
is, if they had to be complied with in advance before the
Municipality approved the site and building plans and before the
development commenced. The Developers contend that the applicants’
challenge was based on a rationality test whereas applicants persist
that it is a legality challenge. This is an irrelevant distinction
for the purposes of determining costs when all that is required is a
finding that the approvals were simply unlawful for non-compliance
with a condition precedent.
[7]
The
relevant conditions read as follows:
a.
‘
10.
A letter of compliance with the DOT requirements shall be lodged with
the Minister prior to the issuing of the certificate contemplated
by
the KwaZulu Natal Provincial Roads Act No 4 of 2001. Such
requirements shall be undertaken prior to the commencement of
any
development.’
And
b.
‘
14.That
the proposed road, road reserve be rezoned from General Commercial 1
purposes to Road purposes; and be constructed in accordance
to
KwaDukuza Municipality Technical Services recommended road
classifications, and once completed be transferred to the
municipality
as a public road.’ (
sic
)
[8]
These
conditions upon which the Municipality approved the plans must be
construed in the context.
[1]
They are conditions in the Site Plan for the development. As such
they are directions at a formative stage to regulate how the
development should proceed.
[2]
Furthermore, the conditions of the Site Plan have many drafting and
typographical imperfections but it communicates the overall
intention
of presenting a way forward for the development. To rezone and to
construct the link road stipulated in condition 14
would be to
commence development which condition 10 precludes. A sensible
interpretation of condition 10 would be that a
letter undertaking to
comply with the KZN DOT requirements had to be lodged with the
Minister before the development commenced.
[9]
Last,
conditions are not precedent if non-compliance can be waived or
remedied.
[3]
Sections 4 and
10(1) of the National Building Regulations and Building Standards Act
anticipate that the Municipality may determine
the conditions from
time to time as the development proceeds. The applicants ought to
have been alive to the possibility of the
Municipality invoking these
provisions to change the conditions that it imposed. Given the scale
of the development of about R1.4
billion and its economic and social
impact in the region, changing conditions to facilitate the
development was more a probability
than a mere possibility. As it
turned out subsequent to approving the plans the condition fell away.
Whether this was by resolution
of the Municipality or with the
promulgation of the
Spatial Planning and Land Use Management Act 16
of 2013
is immaterial. The mere fact that it was possible to dispense
with or vary the condition confirms that it was not precedent.
[10]
Mr
Goddard
submitted that the Municipality did not intend the conditions to be
conditions precedent. The applicants’ current stance
in
accepting that the conditions could be complied with in the course of
the development concludes the debate as to whether the
conditions
were precedent. Manifestly they were not.
Were
the remedies appropriate?
[11]
The
stated harm the applicants sought to avert in launching the interdict
and review was the inconvenience they anticipated they
would suffer
if the conditions pertaining to the link road were not fulfilled.
Allegedly they feared that the increased traffic
volume would
obstruct access to their properties. But the remedies the applicants
sought went far beyond protecting their road
access. They were
expansive, dramatic, drastic and wholly out of proportion to their
interest in safeguarding their road
access. A targeted remedy would
have been to require the respondents to ensure that the development
did not inconvenience the applicants
in accessing their residence.
The applicants could not reasonably have expected to succeed in
securing such remedies that overreached
the anticipated harm.
[12]
Whether
a court will grant an order directing a township owner to carry out
conditions of establishment will depend on all the facts.
Depending
on the nature of the conditions the court may refuse to grant such an
order if it will be unable to enforce it.
[4]
An order seeking compliance with a condition that is not precedent
will not, without more, be granted.
[13]
The
conditions pertain to the zoning and construction of a road yet to be
undertaken, not to a building, which, once constructed
contrary to
approved plans, raises the spectre of demolition as a possible
remedy. Even then the
National
Building Regulations and Building Standards Act limits demolition as
a remedy for breach of building laws to specific circumstances.
[14]
For
as long as the Municipality could determine the conditions from time
to time as the development proceeded, the application was
on shaky
grounds. Furthermore, there was always the ultimate
remedy available for non-compliance with any conditions
of the
development: the Municipality could withhold the certificate of
occupancy if the building was not erected in accordance
with
conditions of approval that it imposed.
[5]
The applicants could have called on the Municipality to invoke this
provision, by which time it would also have become clearer
whether
the road would pose an inconvenience.
[15]
The
KZN DOT has since approved the plans in so far as it relates to the
management of traffic. As it turns out the applicants’
fears of
the traffic inconveniences have not materialised.
[16]
The
Developers’ contention that the applicants have anticompetitive
motives in launching the review is not without substance.
The
applicants have interests in the Lifestyle Mall that competes with
the Ballito Mall. Although the applicants’ motives
for
launching the application are irrelevant to determining its success,
they do go to explaining the extraordinary remedies they
sought for a
harm that could have been averted in so many ways if it had
materialised at all.
[17]
Finally,
the applicants protested about the Municipality’s delay in
advising them as late as April 2017 of their approval
in December
2016. The delay allegedly prejudiced the applicants because the
Ballito Mall opened in March 2017 after which they
could not proceed
with their application. Now that the applicants concede that
the substantive issues in dispute are moot
it is hard to find that
the applicants suffered any prejudice at all from the delay.
Conclusion
[18]
The
applicants sought costs against all the respondents including the KZN
DOT and the fifth respondent, the MEC for Transport, Community
Safety
& Liaison, KwaZulu-Natal (the MEC). The KZN DOT and the MEC had
delivered notices to abide the decision. The KZN DOT
had delivered an
affidavit to complete the information to assist the court. At the
hearing Mr
Kemp
,
counsel for the applicants, conceded that they were no longer seeking
costs against KZN DOT and the MEC. Accordingly I did not
have to hear
Mr
A
Choudree
who appeared for them.
Order
[19]
The
applicants are ordered to pay the costs of all the respondents.
___________________
D. Pillay J
APPEARANCES
Counsel
for the Applicant
: J Kemp SC, S
Pudifin-Jones
Instructed
by
: Richard
Evans & Associates
c/o
Austen Smith
Tel:
(033) 392 0500
Ref:
CC Smythe/vvs/Q2/R0194/15
Counsel
for the 1
st
Respondent
:
G.D
Goddard SC
Instructed
by
:
Shepstone & Wylie Attorneys
Tel: (033) 355 1780
Ref:
JTM/SWDB18802.186
Counsel
for the 2
nd
, 3
rd
Respondents
: RJ
Raath SC, JA Venter
Instructed
by
: Adriaan
Venter Attorneys
Tel:
(012)
346 1845
Ref:
Mr Venter/DG/AM0078
Counsel
for the 4
th
& 5
th
Respondents
: A.B.G
Choudree
Instructed
by
: State
Attorney KwaZulu-Natal
c/o
Cjee Setsubi Chetti Inc.
Tel: (031) 365 2558
Ref:
17/004741/15/R/P7
Date of
Hearing
: 18 May 2017
Date of Judgment
: 30 May 2017
[1]
Natal
Joint
Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) para
18;
Du Plessis N.O and
Another v GoldCo Motor & Cycle Supplies (Pty) Ltd
2009 (6) SA 617
(SCA); R.H. Christie
The
Law of Contract
4ed at 149
and 150.
[2]
Cohen N.O. and Others v
Verwoerdburg Town Council
1983
(1) SA 334
(A);
Oertel en
Andere N.N.O v Direkteur Van Plaaslike Bestuur en Andere
1983 (1) SA 354
(A);
Sandton
Town Council v Original Homes (Pty) Ltd and Others
1975 (4) SA 150 (W).
[3]
Oertel en Andere N.N.O v Direkteur
Van Plaaslike Bestuur en Andere
1983
(1) SA 354 (A).
[4]
Cohen
347C-E.
[5]
Section 14 read
with s 7 of the National Building Regulations and Building Standards
Act, 103 of 1977