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[2012] ZAGPPHC 157
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Clairwood Chalets CC v Eskom Holdings Soc Ltd (40601/2009) [2012] ZAGPPHC 157 (10 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. 40601/2009
DATE:10/08/2012
In
the matter between:-
CLAIRWOOD
CHALETS CC
...............................................
Applicant
and
ESKOM
HOLDINGS SOC LTD
...........................................
Respondent
JUDGMENT
: APPLICATION FOR LEAVE TO APPEAL
Van
der Byl, AJ:-
[1]
On 27 July 2012 I, sitting in the urgent court, dismissed an
application lodged by the Applicant.
[2]
In the application the Applicant sought an interim interdict
prohibiting Eskom from the commissioning of electricity reticulation
over the transmission or distribution lattice structures or pylons of
the Blanco-Knysna powerline falling within the registered
servitude
K409/19785 within a radius of one kilometre from the Applicant's
property, pending the finalization of review proceedings
to be
instituted by the Applicant within 20 days from date of this order
with a view to the setting aside of an environmental authority
granted on 29 October 2009 in respect of the aforesaid electricity
reticulation.
[3]
The Applicant's objection was in effect that the trellis or lattice
type structures erected, particularly, prejudicially affect
the
tourism and unspoilt nature and mountain views that its property
possesses.
[4]
I in effect held that, bearing in mind that the structures had
already been completed, an interdict prohibiting Eskom from the
commissioning of the electricity reticulation over the structures
already erected, will not, at the very least as an interim measure,
remove the Applicant's objection.
[5]
As is apparent from the Notice of Application for Leave to Appeal
("the Notice"), the Applicant now seeks leave to
appeal on
the grounds thereof -
(a)
that I erred in -
(i)
not holding that various misrepresentations were made to the
Applicant and in the Respondent's Environmental Impact Report in
relation to the size, height and nature of the structures and whether
or not the
structures
would be covered by the forest canopy;
(ii)
not holding that the Respondent failed to inform all interested
parties that a decision was made not to use monopole structures;
(iii)
not finding that the balance of convenience favours the Applicant as
the current electricity reticulation line is still fully
operational;
(iv)
not finding that if the electricity reticulation line over the new
trellis or lattice type structures is commissioned and the
current
electricity reticulation is demolished, the Applicant will never be
able to prove that the balance of convenience is in
its favour;
(b)
that I should have held -
(i)
that the structures erected differ in height and size to the monopole
structures that was proposed;
(ii)
that the difference in size and height would have necessitated a
Visual Impact Assessment study to be conducted on the surrounding
environment;
(iii)
that the first time the Applicant became aware that different
structures were being erected was when the Respondent physically
started to erect
the structures;
(iv)
that the trellis or lattice type structures that have been erected
infringes the Applicants right to enjoy ownership of his
property
undisturbed;
(v)
that the Applicant has a reasonable prospect of success to review
theEnvironmental Authorization granted to the Respondent.
[6]
It needs to be pointed out that I was at the outset informed by the
parties that the electricity reticulation in question was
indeed
energised on 5 August 2012 and sought guidance from me as to whether
the Applicant can still proceed with its application
for leave to
appeal. There seems to be a dispute between the parties as to whether
the filing of the Notice revived an interim
order granted by
agreement between the parties on Friday, 20 July 2012. In terms of
that order Eskom was prohibited from commissioning
or energising the
electricity reticulation in question pending the "finalization
of the urgent application which has been
set down for hearing on
Tuesday, 24 July 2012" which is the application which eventually
served before me on 25 July 2012.
On the one hand it is Eskom's
contention that it agreed to the former order on the basis that the
electricity reticulation will
not be energised until judgment has
been delivered in the urgent application. On the other hand it would
appear to be the contention
on behalf of the Applicant that the order
is capable of an interpretation that the former is to stand until the
urgent application
is finalized, including any further processes on
appeal is finalized. If the interpretation assigned tio the order on
behalf of
Eskom is correct, the effect will be that any appeal
against my judgment may not eventually have no practical effect,
whilst, on
the other hand, on the Applicant's interpretation of the
order the former order may have been revived by the filing of the
Notice.
I indicated to the parties that I am unable to resolve the
dispute between the parties in this reagrd, bearing in mind that the
question whether or not the energising of the electricity can be
reversed is a matter of evidence. I accordingly expressed the
view
that the parties should proceed with the application for leave to
appeal whereafter the parties can, depending on the outcome
of this
application, take such steps as they may be advised.
[7]
Returning to the application of for leave to appeal, it would appear
that the only ground which may touch on my finding that
the
commissioning or energising of the electricity reticulation over the
structures have at the time already been erected, will
not remove the
Applicant's objection in the interim, is the one referred to in
paragraph [5](a)(iv) (para 10 of the Notice). As
indicated, the
contention seems to be that if the electricity reticulation line is
allowed to be commissioned or energised, the
Applicant will never be
able to prove that the balance of convenience is in its favour. I
fail to see the significance or relevance
of this contention. The
requirement of the balance of convenience is a requirement to be
established for purposes of interim relief
(Harms, Civil Procedure in
the Supreme Court, para A5.7, p. A-40). That is the relief that was
claimed in this application, pending
review proceedings envisaged to
be instituted seeking the review of the environmental authorization
granted on 29 October 2009.
As I understand the papers the review
application will apparently be based on the alleged
misrepresentations made in the Respondent's
environment impact report
submitted to the Department of the then Department of of
Environmental Affairs and Tourism. The question
of balance can in my
view clearly play no roll in such review proceedings. It accordingly
follows that my finding is not really
challenged in the Notice. In so
far as that finding stands the Applicant has no prospects of success
on appeal and the application
for leave to appeal stands to be
dismissed for this reason alone.
[8]
In view of the aforegoing there was, bearing in mind, particularly,
that I was sitting in the urgent court swamped with many
other urgent
applications, no need to deal with the other requirements for an
interim interdict or the other submissions made in
support and
opposition of the application.
[9]
As far as it is now contended that I erred in not finding that the
Respondent made certain misrepresentations to the Applicant
and in
its Environmental Impact Report, those are issues which are to be
considered by the Judge who will be called upon to consider
the
review proceedings. This seems to be conceded if regard is had to the
ground of appeal referred to in paragraph [5](b)(v) above
(see:
paragraph 15 of the Notice). In that regard the evidence shows that
in a notice published on 31 December 2008 the Respondent
indicated
that it proposed "to replace the existing 66kv wooden pole
powerline from Blanco to Knysna Substation .... with
a new 132 kV
powerline" and that a "combination of steel monopoles,
concrete monopoles, lattice towers and cigar (double
tapered staved
steel) poles, depending on the topography of the study area will be
used" (my underlining,). This description,
read together with,
inter alia, paragraph 3.3.2 of Eskom's Environmental Impact Report
(Annexure GS 12, record p. 61) does not
in my view justify an
inference on a prima facie basis that the Respondent made any
misrepresentations as to the size, height or
type of structures
to
be used.
[10]
As far as the balance of convenience is concerned, it is an
indisputable fact that, on the one hand, a delay in the project
may
result in load shedding affecting the municipal areas of Knysna,
Sedgfield, Wilderness and Bitou proving electricity to thousands
of
households and hundreds of industries whilst, on the other hand, the
Applicant's only objection is that the structures prejudicially
affect the tourism and unspoilt nature and mountain views that its
property possesses in circumstances where the structures had
already
been erected and the interim relief claimed was not aimed at removing
the structures. The balance of convenience accordingly
by far favours
the Respondent.
[11]
I am for the reasons already indicated unpersuaded that the Applicant
has reasonable prospects of success on appeal.
[12]
In the result the application for leave to appeal is dismissed with
costs.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANT: ADV J POTGIETER
On
the instructions of: MARITZ SMITH VAN EEDEN INC
Suite
111, Infotech Building 1090 Arcadia
Street
Hatfield
PRETORIA
Ref: M3716.12/MM/es Tel: 012 342 0000
ON
BEHALF OF RESPONDENT: ADV. M MAJOZI
On
the instructions of:ROOTH & WESSELS
Rooth
& Wessels Building Pare Nouveau 225 Veale Street Brooklyn
PRETORIA
Ref:
J Leotlela/B30266
Tel:
(012) 452 4000
DATE
OF HEARING JUDGMENT DELIVERED
8
August 2012
10
August 2012