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[2015] ZAGPPHC 305
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Brooklyn Security Village NPC v City of Tshwane (87035/2014) [2015] ZAGPPHC 305 (13 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 87035/14
DATE: 13 MAY 2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
BROOKLYN SECURITY
VILLAGE
NPC
..............................................................................
APPLICANT
and
THE CITY OF
TSHWANE
....................................................................................................
RESPONDENT
JUDGMENT
HEARD ON: 20
February 2015
JUDGMENT ON: 13
May 2015
KUBUSHI, J
[1] The application
before me, concerns the exercise of power to restrict access to
public places. In terms of the Rationalisation
of Local Government
Affairs Act 10 of 1998 for the Province of Gauteng (“the
Rationalisation Act”) a mechanism was
created for residents of
an area to apply to the Municipal Council in their respective areas,
for authorisation to secure their
residential areas from rampant
crime through the erection of physical barriers across public streets
and the use of booms/gates
through which all traffic must proceed to
enter and exit a defined area.
[2] The mechanism
for what is called the ‘Restriction of Access to Public Places
for Safety and Security Purposes’ is
contained in chapter 7
(sections 43 to 48) of the Rationalisation Act. The purpose of
chapter 7 is said to be to restrict access
to public places for the
sole purpose of safety and security.
[3] For purposes of
enhancing safety and security, s 43 of the Rationalisation Act
confers a municipal council for the area concerned,
with the power
to, either on its own initiative, impose restriction on access to any
public place; or authorise any person, body
or organisation to
restrict access to any public place.
[4] In terms of the
Tshwane Municipal Council Resolution approved on 31 March 2011, the
power to consider all land use and development
applications, subject
to the Constitution of the Republic of South Africa Act 108 of 1996
(the Constitution), and subject to any
other legislation and all
powers and functions of the City of Tshwane Metropolitan Municipality
as contemplated in the Rationalisation
Act, were delegated to the
Executive Mayor (Strategic Land Development Tribunal).
[5] The applicant, a
non-profit company with the object of furthering the interests of
certain residents and property owners in
Brooklyn, namely, the
residents living within the area bounded by Rupert Street on the
East, Waterkloof Road on the South, Jan
Shoba Drive on the West and
Justice Mohamed Street on the North, incorporating 145 residential
erven (“the area”),
submitted an application in terms of
chapter 7 of the Rationalisation Act (“the chapter 7
application”) with the respondent.
I shall for purposes of this
judgment refer to that application as the chapter 7 application in
order to differentiate it from
the application serving before me.
[6] Due to the
unacceptable high rate of crime within the area, the members of the
applicant resolved to submit a chapter 7 application
for the
restriction of access to the area. The application was served on the
respondent on 16 November 2012. The restriction sought
involved
erecting booms and fences, across public roads and open spaces, to
channel the movement of people and motor vehicles into
and out of the
area through designated points. The restrictions will not prevent any
person or motor vehicle from entering, but
merely monitors their
movement into and out of the area.
[7] Since the
applicant submitted the application on 16 November 2012, the
respondent failed to take the necessary steps and to
consider the
application. The applicant’s undisputed evidence is that the
chapter 7 application that was submitted by the
applicant to the
respondent, complied in all material respects with the
Rationalisation Act and the respondent’s policy requirements.
In August 2014 a report was submitted to the respondent confirming
that all the internal departments of the respondent as required
by
the Rationalisation Act supported the application and recommended
that it be approved by the Strategic Land Development Tribunal
(“the
SLDT”). The applicant in its papers refers to this committee as
the Strategic Land Development Committee, but
according to the
Tshwane Municipal Council Resolution approved on 31 March 2011, the
committee is referred to as a Tribunal. After
a protracted process
the application served before the SLDT on 1 October 2014. The SLDT
referred the application back to the applicant
with a query that
other opportunities or possibilities for ensuring the safety of the
community be exhausted. In addressing the
query, the applicant
requested to be allowed to make a presentation in respect of other
measures like monitoring by CCTV cameras.
No answer had been
forthcoming. The applicant has now approached this court for relief.
[8] Initially when
the applicant approached this court it was on the basis of a review
application. The main relief sought being
for an order to review and
set aside the respondent’s failure to approve the applicant’s
application in terms of chapter
7 of the Rationalisation Act; and to
authorise the applicant to erect and implement the access control
structures in respect of
the area and the respondent be restrained
from interfering with or removing the said structures.
[9] There was some
other relief sought by the applicant in the alternative to the main
relief. The two alternative claims sought
were in the form of
interdicts. The first alternative relief was for an interim interdict
pending the final determination by the
respondent of the applicant’s
chapter 7 application. The second alternative relief was for a
mandatory interdict, which sought
to mandate the respondent to take
all the necessary steps to process the applicant’s chapter 7
application.
[10] At the hearing
of the application, the applicant, through its counsel, for reasons
not advanced at the hearing, abandoned prayer
1 which was inclusive
of prayers 1.1,1.2,1.3 and prayer 3. Prayer 1, as I have said, was
mainly for an order to review and set
aside the respondent’s
failure to approve the applicant’s chapter 7 application. It
meant, therefore, that the review
application was abandoned as a
whole. Prayer 3 on the other hand was in respect of the mandatory
interdict. Having abandoned the
two prayers, what remained was the
relief for the interim interdict.
[11] The respondent
opposed the application and filed an answering affidavit setting out
its defence. The answering affidavit was
filed out of time without an
application for condonation for such late filing. At the hearing of
the application, the applicant’s
counsel raised an objection to
the late filing of the respondent’s answering affidavit without
applying for condonation.
The respondent’s counsel conceded
that the answering affidavit was filed out of time. He, consequently,
abandoned the answering
affidavit and opted to argue the matter on
the applicant’s papers. The matter was thus argued before me
only on the basis
of the applicant’s papers.
[12] In his oral
argument before me, the respondent’s counsel raised issues of
law which sought to be decided outside the
facts as presented by the
applicant in its papers. At the end of the hearing I instructed both
counsel to provide me with heads
of argument on the legal issues
raised by the respondent’s counsel. The heads of argument were
duly furnished.
I am thankful to
both counsel for dealing extensively with the issues in their
respective heads of argument.
[13]
In essence the respondent’s opposition is based on the question
whether or not the relief sought by the applicant on
the papers
before me is competent. In this respect two points were taken by the
respondent. I shall deal with the said points
in
seriatim.
PAJA APPLICATION
[14] The point of
law raised in this respect relates to prayer 1 of the applicant’s
notice of motion. The relief sought in
this prayer is in regard to
the order to review and set aside the failure by the respondent to
approve the applicant’s chapter
7 application. The respondent’s
submission being that a decision in terms of chapter 7 of the
Rationalisation Act was not
an administrative action and was as such
excluded from the application of the Promotion of Administrative
Justice Act 3 of 2000
(“PAJA”).
[15] Even though the
applicant had abandoned prayer 1 of its notice of motion, both
counsel for the parties addressed me at length
on the reviewability
of the respondent’s failure to approve the chapter 7
application, which debate I found to be of no consequence
since the
issue had become academic.
INTERIM RELIEF
[16] In its founding
affidavit, when addressing the issue of interim relief, the applicant
asserted that the application should
succeed and the relief sought be
approved on the basis that the applicant and/or its members are
entitled to:
(a) Their
fundamental rights
(b) The
implementation of the access restriction structures as perthe
application because:
(i) the
Rationalisation Act created a mechanism by which the applicant could
apply for restriction of access to public places for
the purpose of
enhancing safety and security. For this purpose roads are regarded as
public places;
(ii) the application
complies with the requirements of the Rationalisation Act.
[17] When addressing
me in court, the applicant’s counsel contended that the
applicant has clearly shown a reasonable prospect
of success in that
the Tribunal and even so the Municipal Council, should they apply
their minds, would approve the merits of the
application because all
the internal departments of the respondent supported the application.
In this regard, counsel referred
me to the unreported judgment in
Lynnwood Manor Estate v The City of Tshwane (34160/2007) [2008] TPD
(01/02/2008), wherein Botha
J granted an interim order as the
applicant therein had shown that there was reasonable prospect of
succeeding with their appeal.
[18] The
respondent’s counsel, on the other hand, contended that having
abandoned prayers 1 and 3, the applicant is not entitled
to prayer 2
and that the application must be dismissed with costs. The submission
being that the application cannot be categorised
as an application
for interim relief based on the following grounds:
(a)
The application in this instance, does not invoke either preservation
or restoration of the
status quo ante
pending
determination of rights by a court of law.
(b)
The suggestion by the applicant that there is a
prima
fade
right
that the application will be granted by the respondent is unheard of.
(c) Only a
municipality may issue the authorisation prayed for by the applicant,
within the structure of the Rationalisation Act.
[19] It was my view
that from the outset the applicant had not made out a case for
interim relief. This is so because the applicant
failed in its
founding affidavit to establish the fundamentals of an interim
interdict.
[20]
One of the aims of an interim interdict is to preserve the
status
quo ante
pending
the final determination of the rights of the parties to pending
litigation. That is, there must be legal proceedings on
the same
facts pending between the parties.
1
[22]
Interim interdicts are generally and in their nature granted
pendente
lite.
They
are designed to protect the rights of a litigant pending the
finalization of pending proceedings or proceedings to be instituted
by such litigant. When considering whether to grant or refuse an
interim interdict, the court seeks to protect the integrity of
the
proceedings in the main case. The court seeks to ensure, as far as is
reasonably possible, that the party who ultimately is
successful will
receive adequate and effective relief.
2
[23] The interim
relief sought by the applicant is that pending the final
determination by the respondent of the applicant’s
chapter 7
application:
“
2.1
The applicant be authorised to immediately erect and implement the
access control structures in respect of the area to which
the
application relates, and that such structures be allowed to remain in
place and implemented pending the final outcome of the
application in
terms of the Act and/or the exhausting of all the domestic remedies
and/or the respondent’s procedures pursuant
to the outcome of
the respondent’s decision on the application;
2.2 The respondent
be interdicted and restrained from removing such access control
structures.”
[24] It is common
cause that there are no legal proceedings between the parties pending
on the same facts that are before me. The
case by the applicant,
which is not challenged, is that the applicant is awaiting a decision
of the Municipal Council in respect
of its chapter 7 application.
Surely this decision cannot be said to be pending legal proceedings.
[25]
From the perusal of the applicant’s papers it is quite clear
that the interim relief, should it be granted, will not
preserve any
status quo ante
as
required for an interim interdict to have effect.
[26] The
Rationalisation Act, in terms of s 43, empowers the Municipality
Council to authorise any person, body or organisation
to restrict
access to any public place. As such, only a Municipal Council can
issue authorisation within the scheme of the Rationalisation
Act, and
not the court. The relief sought by the applicant for this court to
authorise the erection of structures for the restriction
of access to
a public place cannot ensue.
[27]
The contention by the applicant that there is a
prima
fade
right
that the chapter 7 application will be successful is fallacious to
say the least. I agree with the respondent’s submission
that
the applicant’s contention conflates probable eventualities
with vested rights. It is indeed so that a
prima
facie
right
must exist as at the time of application and should not be contingent
upon some future event. Even so, as I have said, the
decision awaited
is not pending legal proceedings. It is my view that the submission
of the application with the respondent does
not confer any
substantive right whatsoever upon the applicant none was identified
in the applicant’s papers.
[28] The judgment by
Botha J does not come to the assistance of the applicant. The two
cases are distinguishable in that in the
Botha J judgment there were
pending legal proceedings between the parties wherein a decision was
made and subjected to a legal
process, whereas it is not the case in
this instance.
[29]
There is a further issue raised by the respondent’s counsel in
argument before me, that an interim interdict against
an organ of
state does not rely on a
prima facie
right.
In this regard, counsel referred me to the judgments in Cool v
Minister of Justice and Another
1955 (2) SA 682
(C) and National
Treasury v Opposition to Urban Tolling Alliance
2012 (6) SA 223
(CC)
paras 41 - 45.
[30] When dealing
with the test for the grant of an interim interdict, and relying on
the Gool-judgment, the court in the OUTA-judgment,
stated the
following:
“
[44]
The common-law annotation to the Setlogelo test is that courts grant
temporary restraining orders against the exercise of statutory
power
only in exceptional cases and when a strong case for the relief has
been made out...”
[31] I mention this
issue without having to resolve for present purposes whether the act
of the respondent complained of in this
instance is either executive,
legislative or administrative.
[32] It is on those
bases that I would conclude that the relief sought by the applicant
stands to fail.
[33] Having
concluded as such. I, however, take cognisance of the frustrations
suffered by the applicant’s members in the
respondent taking
too long to decide their chapter 7 application. From the evidence in
the applicant’s papers the application
was submitted on 16
November 2012. Over two years has gone by and the respondent has not
responded to the application. It does
not even appear from the
evidence that the respondent is even nearer to giving that response.
I also take cognisance of the fact
that the Constitutional rights of
the applicant’s members as clearly set out in the founding
affidavit are infringed and
continue to be infringed. It is, thus, my
view that I should come to their assistance.
[34] I am of the
opinion that using the prayer by the applicant in the notice of
motion calling for further and alternative relief,
I should in the
interest of justice, grant a structural interdict which is aimed to
direct the applicant to consider the application.
In essence, the
order should direct the respondent to take all the necessary steps to
process the application lodged by the applicant
and to give due and
proper consideration to the application within eight weeks of this
order and to give the applicant a full opportunity
to be heard in
connection therewith.
[35] I do not think
that the respondent would be prejudiced by such and order. As it is,
the applicant had initially sought such
an order but abandoned it.
The respondent’s counsel when arguing this point gave an
impression that the respondent would
not be adverse to the granting
of such an order. In fact, counsel in the heads of argument, conceded
that a proper case has been
made out in the papers to grant such an
order.
COSTS
[36] The issue of
costs was also argued at length before me. The applicant’s
counsel argued for a punitive costs order. I
am, however, of the view
that such an order should not be granted. Even though the applicant
appears to be the successful party
in these proceedings but it
succeeded not on the prayer it sought. I would in the circumstances
order that each party be responsible
for own costs.
In the premises I
make the following order:
1. The respondent is
ordered and directed to take all steps necessary to process the
application lodged with it on 16 November 2012
by the applicant and
to give due and proper consideration to the application within eight
(8) weeks of this order.
2. The respondent is
ordered and directed to give the applicant a full opportunity to be
heard in connection with the application
referred to in 1 above.
3. I make no order
as to costs.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
Appearances:
On behalf of the
applicant: Adv. T STRVDOM SC
Instructed by:
DUKE ATTORNEYS
C/O COUZYN,
HERTZOG & HORAK
321 MIDDEL STREET
Brooklyn
PRETORIA
On behalf of the
respondent: Adv. M MANALA
Instructed
by:
GILDENHUYS
MALATJ
IE
INC
GMI
House Harlequins Office Park
164
Totius Street
Groenkloof
PRETORIA
1
Pikoli
v President of RSA
2010 (1) SA 400
at 403H.
2
Pikoli
v President of RSA
2010 (1) SA 400
at 404 A-D.