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[2015] ZAKZDHC 91
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PLG Schools (Ballito Academy) v KwaDukuza Municipality (13896/2014) [2015] ZAKZDHC 91 (22 December 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
Case No : 13896/2014
DATE: 22 DECEMBER 2015
In the matter between :
PLG Schools (Ballito
Academy)
...............................................................................................
Applicant
And
KwaDukuza
Municipality
.....................................................................................................
Respondent
Judgment
Lopes J
[1] This application came before me on
the 18th December 2015 as an opposed urgent application. The
applicant, PLG Schools (Ballito
Academy) seeks an order from this
court extending the time limits of an order granted on the 11th
February 2015 by consent between
the school and the respondent, the
KwaDukuza Municipality ( ‘the Municipality’).
[2] The history of the matter may be
briefly summarised as follows.
(a) At the end of November 2014 the
Municipality delivered an application for an order interdicting the
school from using certain
premises as a school, unless and until
special consent had been granted by the Municipality.
(b) The school counter-applied for an
order directing the Municipality to consider its application for
special consent within a
period of two months from the 14th November
2014.
(c) The application was eventually
heard, and settled, during February of 2015 and a consent order was
agreed upon by the parties
and granted by the court.
(d) The effect of the consent order was
that an interdict was granted preventing the school from carrying on
a school on the premises
it occupied in Ballito, and to stop and not
continue with building works on the premises until they had been
approved in terms
of the National Building Regulations and Building
Standards Act, 1977. The school was also directed to give notice to
all learners
that it was unable to operate as a school until it
obtained permission, both in terms of the National Building
Regulations and
Building Standards Act and the Ballito Town Planning
Scheme.
(e) In paragraph 6 of the consent order
the interdictory provisions were suspended up until the 31st December
2015, or the end of
the school’s 2015 academic year, whichever
occurred first. The order recorded that in the event that the
special consent
application was granted by the Municipality prior to
the 31st December 2015, then the interdicts would fall away. An
order that
the school pay the Municipality’s costs on the scale
as between attorney and client, subject to a maximum of R320 000, was
also agreed.
(f) The present application by the
school sets out in its founding affidavit correspondence which was
conducted between the parties
and their legal representatives. What
emerges from the affidavit and the correspondence are the following
:
(i) The school requested, as early as
the 23rd February 2015 that the Municipality provide it in writing
with the criteria to be
used by the Town Planning Tribunal in
assessing the special consent application to be made.
(ii) The Municipality insisted that a
meeting should be held, in order that proper clarification could be
given to the school’s
representatives by persons employed by
the Municipality who were qualified and equipped to do so.
(iii) Neither party changed its stance
with the school’s legal representative’s still requesting
the criteria in writing
on the 26th June 2015. Eventually a meeting
was held between the parties’ representatives on the 28th July
2015. This meeting
was held because the application for special
consent which was eventually submitted by the school on the 15th July
2015, was considered
by the Municipality’s employees to be
incomplete.
(iv) Pursuant to that meeting a further
application for special consent was submitted by the school, this
time represented by Sivest,
apparently specialists in town planning
applications. This subsequent application was only submitted on the
19th August 2015.
(v) Matters then dragged on because the
school was again notified by the Municipality’s employees that
the special consent
application was incomplete.
(vi) On the 15th October 2015 the
Municipality requested the consent of the school to extend the time
period within which the meeting
was to be held by a further 30 days.
This was because the parties were aware that the time period during
which the interdicts
were suspended was to come to an end on the
31st December 2015, or the end of the school’s academic year
(which it turns
out was the 9th December 2015).
(vii) The school’s attorneys then
complained on the 17th November 2015 about the fact that the time
limits were to expire
with no decision having been made by the
Municipality. The attorneys requested an extension of the time
periods during which the
interdicts would be suspended. This was
eventually refused by the Municipality on the 2nd December 2015. On
the 3rd December
2015 the Municipality notified the school that the
decision would be announced on the 11th December 2015.
(g) The school then launched this
application on the 3rd December 2015. On the 10th December 2015 the
Municipality handed down
its decision refusing the special consent
sought by the school. On the 7th December 2015 this application was
heard and an order
made, inter alia, providing for the filing of
affidavits, and a further order that the operation of paragraph 4 of
the consent
order granted on the 10th February 2015 was further
suspended until the 18th December 2015. Paragraph 4 of the consent
order dealt
with the notices to be given by the school to prospective
learners.
[3] The school’s founding
affidavit in this application is a somewhat self-serving document
which evidences in my view an
inadequate justification for the
incompetence of the school in not proceeding timeously with its
application before the Municipality
for special consent. What is
clear is that the school went ahead with establishing its premises
without first obtaining the proper
consent. There is an abundance of
recent authority dealing with the need for persons wanting to develop
properties, to do so in
a proper and lawful manner, obtaining the
requisite consent in advance. In the applicant’s affidavit the
deponent tries
to blame the Municipality for all its woes. It does
not explain why there are huge gaps in the process of applying for
the special
consent, and why, if the school felt that it was being
unfairly treated by the Municipality, it did not seek the proper and
timeous
relief from the courts to assist it.
[4] The continual allegations of malice
on the part of the Municipality’s employees have no apparent
foundation in fact.
What appears to be a belligerent attitude on the
part of the school in refusing to meet with the Municipality’s
staff who
were to advise them, is inexplicable, save perhaps that it
was done for the reason that the school feared it could not meet the
requirements of the special consent application and did not wish to
proceed with it. Had the school required information which
was not
available to its legal advisors, and it was entitled to have that
information provided, its legal advisors could and should
have
brought an application to secure such knowledge. Their continual
exchange of correspondence was most unhelpful in the circumstances.
[5] That, however, is not the end of
the matter. The school wishes to pursue its legal remedies and
appeal to the Municipal manager
against the decision of the Town
Planning Tribunal. Mr Goddard, who appeared for the Municipality,
was unable to give me any indication
whatsoever as to when the Appeal
Board would be able to be constituted to hear the appeal, save to
state that it would have to
be re-constituted in the New Year. The
clear impression I was given, was that this was not going to occur
in the near future.
[6] Mr Pillay, who appeared for the
school, submitted that in terms of the consent order concluded
between the parties it was clearly
envisaged that the special consent
application process would be followed to its conclusion by way of an
appeal, if necessary. He
pointed out that this is evident from the
Municipality’s own correspondence, containing a summary
prepared by the Municipality
which states:
‘The whole idea of initially
agreeing to the suspension of the Court Order to the end of the year
was, amongst other things,
to give the applicant adequate time to
submit their application and complete the entire process, inclusive
of an appeal process,
if need be.’
Mr Pillay submitted that the prima
facie right of the school to a mandatory interdict was established by
the clear intention of
the parties in concluding the consent order.
[7] In addition to the aforegoing, Mr
Pillay pointed out that in terms of the decision made by the
Municipality’s Town Planning
Tribunal, the authority of the
decision only becomes effective upon the expiry of the 21 day period
provided for an appeal, if
no appeal is lodged against the decision
of the Municipality. In the event that an appeal is lodged the
decision becomes final
upon the finalisation of the appeal. Mr
Pillay indicated that the appeal was all but lodged, and would be
lodged timeously.
[8] Mr Pillay submitted that in terms
of the bylaws passed on the 13th August 2015, the special consent
procedure is dealt with
on paper alone, whereas the appeal entails a
more complete procedure. Thus the appeal process is the more
important process of
the two. What the school wants is for the
interdicts to be suspended until the process takes its course. He
submitted that it
does not lie in the mouth of the Municipality to
indicate that an appeal tribunal was not constituted, and would have
to be constituted
in the New Year, entailing further delays, when it
wished to have the school’s application for an extension of the
suspension
of the interdict dismissed because of delays on the part
of the school. All that the school wants is for the special consent
procedure
to be carried out to its logical end.
[9] Mr Goddard submitted that the
school was prohibited from being conducted on the premises concerned
without the grant of special
consent by the Municipality, and the
Municipality did not agree to go to the end of the process, but
merely the end of December
2015 or the end of the school’s
academic year, which had already occurred. He submitted that even
with the interdicts in
place, the appeal could still be heard, but
the school would simply cease to operate. The school’s prima
face right was
only to have the matter adjudicated, and not to have
the interdicts continually suspended. He submitted that it was not
the intention
of the agreement that the school would continue to
operate until the appeal was decided. Had the school acted promptly
the entire
process would have been finalised within a year.
[10] I do not agree with the
submissions of Mr Goddard. It is clear from the documentation before
me that it was the intention
of both the Municipality and the school
that the special consent process would be followed through to the
appeal stage. It was
also envisaged by all parties that this would
be finalised by December of 2015. We now know that that did not, and
cannot, happen.
The reasons why, and the apportionment of fault in
that regard, are not the only factors which I have to consider.
[11] An important factor which falls to
be considered is the balance of convenience. There are approximately
270 children attending
the school, together with 17 academic staff,
and in 2016 there are 180 new enrolments together with 14 new members
of the academic
staff together with five other employees. If the
school were not to continue the prejudice to all these persons would
be manifest.
The children would have to enrol in other schools at
great inconvenience to themselves and their parents, not to mention
the expense
of new uniforms, etc.
[12] I am accordingly of the view, for
the reasons set forth above, that the interdicts which were granted
should be extended for
a further period to allow the appeal process
to be finalised.
[13] In deciding this I do not wish to
be understood, in any way, to be condoning what I consider to be the
unacceptable conduct
of the school in failing to ensure that all the
administrative processes were finalised prior to conducting the
operation of the
school. It is difficult to understand on a reading
of the papers why the proper professional staff were not hired by the
school
at the outset, and why they did not meet with, and discuss the
matter with the Municipality’s staff, when they were invited
to
do so.
[14] With regard to the question of
costs, there can in my view be no debate about the fact that the
school has been granted an
indulgence, which I cannot envisage would
easily be granted again. The belligerent attitude of the school
authorities and their
legal advisors is, in my view, in large measure
responsible for the fact that the deadline of one year was not met.
The excuses
about the conduct of the Municipality and the fact that
they did not timeously address matters are factors which could easily
have
been resolved by applications to court after suitable warnings
were given. None of that was done. In these circumstances I am
of
the view that the school should pay for the indulgence which it
seeks, and the costs should not come out of the public purse.
In
this regard I disagree with the submissions of Mr Pillay, that each
party should pay its own costs.
[15] I also do not agree that the
school should be given leave to apply on the same papers as those
delivered on the 3rd December
2015, supplemented insofar as may be
necessary, for a further order varying or extending the period of
suspension beyond that which
is sought by the school presently. To
do so would in my view only encourage further delays.
[16] In all the circumstances I make
the following order :
(a) The order of the 11th February 2015
under case number 13896/2014 is varied by the substitution of
paragraph 6 thereof with the
following paragraph 6 :
‘6. The operation of the orders
in paragraphs 1 to 5 above is suspended in their entirety up to and
including the 31st December
2016, alternatively the end of the
respondent’s 2016 academic year, whichever should occur first.
In the event that the
special consent application is granted by the
applicant prior to the 31st December 2016, alternatively the end of
the respondent’s
academic year, whichever occurs first, the
interdicts shall fall away.’
(b) Nothing contained in this order, or
the order of the 11th February 2015, shall in any way absolve the PLG
School (Ballito Academy)
from complying with any other legal
requirements for the operation of the school, other than those
contained in the application
for special consent and covered by the
suspended interdicts.
(c) PLG Schools (Ballito Academy) is to
pay the costs of the KwaDukuza Municipality in this application, such
costs to be calculated
on the scale as between attorney and client.
Date of Hearing : 18th December 2015
Date of judgment : 22nd December
2015
Counsel for the Applicant : I Pillay
(instructed by MacGregor Erasmus Attorneys)
Counsel for the Respondent : G D
Goddard (instructed by Shepstone & Wylie)