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[2016] ZAGPPHC 997
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Lyons And Davidson Construction CC v Ekurhuleni Metropolitan Municipality and Others (91419/2015) [2016] ZAGPPHC 997 (11 November 2016)
THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NUMBER: 91419
/
2015
DATE OF HEARING: 27
OCTOBER 2016
DATE OF JUDGMENT: 11
NOVEMBER 2016
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED
In the matter between:
LYONS AND DAVIDSON
CONSTRUCTION
CC
Applicant
and
EKURHULENI METROPOLITAN
MUNICIPALITY First
Respondent
GAUTENG DEPARTMENT OF
HOUSING
Second
Respondent
REGISTRAR OF
DEEDS
Third
Respondent
JUDGMENT
AVVAKOUMIDES, AJ
[1]
The Applicant has applied for the upliftment of the caveat
registered over Portion 1 130, Erf 21169, Tsakane Extension Township
("the property"). The Applicant claims to be the developer
over the property.
[2]
In August 2005, Circle Seven Trading 660 CC ("Circle
Seven") entered into a written agreement with Dambou
Eiendomontwikkelaars
CC ("Dambou") 1n terms whereof Circle
7 purchased the rights to develop the property.
[3]
The Applicant relies on a services agreement concluded between
the then Town Committee of Tsakane and the owners of the property,
being Dambou and Township Realtors SA (Pty) Limited ("Township
Realtors").
[4]
The First Respondent submitted that it is important to bear in
mind that the service agreement applies to the entire Tsakane
Township.
Clause 5 thereof provides for the developer to install
internal services. Clause 5.2 provides that:
"5.2 The Developer
shall in addition at its own cost provide and install an internal
road network and an internal storm water
drainage system, on the
basis that:
5.2.1. the Developer
proposes development in phases as set out in 5.3 below. All roads in
the first phase shall be bituminous (tar)
surfaced and the storm
water system shall consist of an underground system;
5.2.2. dependent on the
affordability of erven and market demand the Developer shall as far
possible (sic) during the following
phases of development endeavour
to bituminous surface all roads, it being recorded that not more than
40 % (Forty percent) of the
total development of the township shall
consist of gravel roads with bituminous surface bus routes as well as
a surface drainage
system."
[5]
The service agreement is not relevant to the property in
question. Erf 21669 ought to be distinguished from Tsakane Ext 11.
The
latter comprises the entire township whereas this application is
only concerned with Erf 21669. This property constitutes private
land.
[6]
Erf 21699 comprises of portions 1 to 131. Portion 132 is the
road within the property. The Applicant claims that during 2006
Circle
Seven and the Lesedi Partnership proceeded with the
development of the property and employed a property management
company to oversee
the installation of services in terms of the
services agreement. The Applicant submitted that some of the erven
were sold to third
parties during 1991. These were Erven 1 and 2, 51
to 60, 70 to 79, 89 to 104, 107 to 109 and 112. These erven were also
registered
in the names of third parties. These erven or portions are
situated within the subject property and are to be differentiated
from
the entire Tsakane township.
[7] The Applicant
submitted that the installation of the water network and sewer
network was completed during November 2006 and
a certificate of
completion was issued by CPMS, the property managers on 14 November
2006. The Applicant relied on a copy
of the certificate marked
annexure "E" to the founding affidavit. The Applicant
submitted that it came to its knowledge
that the Second Respondent,
the Gauteng Department of Housing, had registered a caveat over the
remaining erven. As a result of
the caveat the properties could not
be registered to third parties. These are Portions 2, 4 to 7, 9 to
12, 14 to 49, 56 to 65,
67 to 69, 75 to 87, 93 to 104 and 113 to 130.
The Third Respondent could not transfer these properties to the
purchasers without
confirmation that these portions had been fully
serviced. The Applicant relies upon the confirmation of one Mrs Smith
of the Department
of Housing who confirmed that the caveat was
registered over the properties.
[8]
The Applicant submitted that a meeting took place between the
Municipality's officials and the Applicant's predecessors of the
Lesedi
Partnership in November 2008. At that meeting the
Municipality's official, namely Mr Beetge, stated that the road
should be paved
instead of tarred. The reason for this was that the
Municipality did not want to maintain the roads and that the owners
should
maintain the roads. The Applicant relies upon the services
agreement which provides that 40% of the roads in the township have
been tarred. According to the First Respondent the Applicant
erroneously overlooks the fact that the services agreement applies
to
the whole Tsakane Township and not this property.
[9]
The Applicant relied on the letter purportedly issued by the
Municipality on 7 February 2012 confirming that the caveat on the
properties
could be uplifted. The Municipality submitted in its
answering affidavit that the property has not been tarred, nor has it
been
paved. The developer has thus not installed the requisite
services in order for the caveat to be uplifted. The developer has
also
failed to install a storm water drainage system. The caveat
imposed by the Second Respondent, in order to protect the purchasers
and potential owners of stands are on portions within the property,
cannot accordingly be uplifted. The purpose of the caveat is
that it
serves as a "hold" over the developer to ensure that third
parties are protected and that it is forced to install
services over
the property or township. From the annexures to the papers it appears
that only certain properties have access to
that public road, namely
Ranyao Street.
[10] The Municipality's
engineer for roads and storm water in the eastern region of the
Municipality, Mr Beetge, confirmed that
the road has not been
developed within the property, nor has storm water drainage been
installed. The GIS (Geographic Information
System) has also reflected
that the road has not been tarred or paved. These were shown to me on
coloured aerial maps which are
annexed to the Municipality's
answering affidavit. They assist to show the First Respondent's
version. The road appears not to
have been tarred or paved.
Accordingly the First Respondent submitted that transfer of the erven
within the property cannot be
effected.
[11] The First Respondent
submitted that the Applicant should not have applied to court whilst
knowing that it hasn't complied by
not installing the required
services. The Applicant's predecessor, the Lesedi Partnership, was
informed in writing on 20 April
2009 by the Province that the
completion certificate that it relied on (dated 14 November 2006)
does not mention that roads and
storm water were installed. The
Applicant's predecessor, the Lesedi Partnership, also launched an
application for identical relief
in this court under case number
2009/20681 which application is still pending.
[12] Of most concern is
the annexure "N" to the Applicant's founding papers which
appears to be a letter written by one
Mr A. A. Tshabalala from the
First Respondent requesting that the caveat be uplifted. Mr
Tshabalala deposed to a confirmatory affidavit
which is attached to
the First Respondent's answering affidavit in which he denies having
signed such letter. Mr AA Tshabalala,
the Municipality's senior
building inspector disputes his signature as well and his signature
is visibly from the letter marked
annexure
"N".
Mr
Tshabalala has also stated that he would also not have been
authorized to have signed the sign annexure
"N"
as
he is only authorised to verify building plans. This being the case I
cannot see how this application can be decided on the papers
before
me.
[13] The Applicant cannot
thus rely on annexure
"N"
to prove that it has
installed the required services. The First Respondent submitted that
best evidence is not the certificate submitted
by the Applicant but
the actual version of the Municipality, namely that the road has not
been completed and neither has the drainage
system been completed.
[14] The Applicant
submitted that it is in possession of annexure
"N"
confirming the go ahead to uplift the caveat but could not make
any submissions about the allegations made by Mr Tshabalala. The
Applicant concede thus that the application could not be decided on
the papers as they stood before me and submitted that the appropriate
order under the circumstances would be a referral to oral evidence. I
do not agree. The dispute is material and the Plascon Evans
rule must
accordingly apply. The application had to be decided on the First
Respondent's version.
[15] I accordingly make
the following order: the application is dismissed with costs.
_______________________________
G T AVVAKOUMIDES
ACTING JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
DATE: 11 NOVEMBER 2016
Representation for
Applicant:
Counsel: J.
N.
W
Botha
Instructed by: Meyer &
Mahuntsi Attorneys
Representation for First
Respondent
Counsel: C. Georgiades
Instructed by: Pravina
Rughoo-Nandan Attorneys
Representation for Second
and Third Respondents: No appearance