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[2012] ZAGPPHC 315
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Wilson and Others v Mbombela Local Municipality and Others (19621/2004, A19/2008) [2012] ZAGPPHC 315 (27 November 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION : PRETORIA
CASE
NO:19621.2004-A19.2008
DATE:27/11/2012
In
the matter between:
RICHARD
FRASER
WILSON
............................................................................
1st Appellant
(1st
Applicant a quo)
DR
J J
TOERIEN
..................................................................................................
2nd
Appellant
(4th
Applicant a quo)
RAYMOND
HERMAN
BEZUIDENHOUT
..........................................................
3rd
Appellant
(7th
Applicant a quo)
TREVOR
MIDDLETON
.......................................................................................
4th
Appellant
(10th
Applicant a quo)
and
MBOMBELA
LOCAL
MUNICIPALITY
..............................................................
1st
Respondent
HENDRIK
GERHARDUS ABRAM
SNYMAN
.................................................
2nd
Respondent
THE
REGISTRAR OF DEEDS.
PRETORIA
...................................................
3rd
Respondent
JUDGEMENT
1.This
is an appeal, with leave of the Supreme Court of Appeal, against the
order of the Court a quo, per Bosielo J, of 6 October
2005,
dismissing the application for the review of certain administrative
actions of the first respondent taken in terms of the
Transvaal Town
Planning and Townships Ordinance 15 of 1986 (“The Town Planning
Ordinance”).
2.
The application was dismissed on the basis that the appellants
delayed unreasonably in instituting the review proceedings, with
the
Court a quo declining to condone this delay.
3.
The Court a quo refused an application for leave to appeal. Four of
the original ten applicants, i.e., the present appellants,
petitioned
the Supreme Court of Appeal for leave to appeal and such was granted
on 26 August 2006 to appeal to this court.
4.
However, the appellants did not deliver their Notice of Appeal
timeously and similarly failed to prosecute the appeal by failing
to
apply for a trial date timeously and also by failing to file the
record and copies thereof timeously.
It
is common cause that as a result of the aforesaid, the appeal lapsed.
The appellants thereupon filed two condonation applications
relating
to the aforesaid and an application for reinstatement of the appeal
in order to attempt to have the appeal reinstated.
Both applications
for condonation and for reinstatement of the appeal were opposed by
the first and second respondents. This court
has to adjudicate those
applications in initio.
Background
5.
The second respondent is the owner of Portion 125 of the Farm The
Rest, 454 JT (“the property”), just outside the
town of
Nelspruit. During 2001 he commenced the business of a sports bar on
the property. The sports bar attracted customers and
the increased
traffic to the property and the music and noise resulting from the
activities during the evenings, resulted in the
appellants, as
neighbouring land owners, complaining to the second respondent.
Eventually the appellants sought the assistance
of the authorities.
The second respondent did not have the required authority to conduct
the business of a bar and he eventually
closed the sports bar.
6.
Thereafter, on 19 March 2002, the second respondent lodged an
application with the first respondent in terms of section 96 of
the
Town Planning Ordinance for the establishment of a township on the
property. Simultaneously therewith the second respondent
applied for
the zoning of two of the erven in the proposed township for use as a
restaurant/place of refreshment and amusement.
Such a zoning would
have allowed for a bar to be operated on the property.
7.
The second respondent’s application was duly advertised but
the appellants failed to timeously object to the application.
However, they were informed by the first respondent of a public
hearing to be held on 27 June 2002 at which the matter was to be
addressed. At the hearing the first appellant submitted a memorandum
on behalf of the appellants and also addressed the committee
of the
first respondent hosting the meeting and submitted the objections of
the appellants in writing.
8.
In essence, the appellants raised three objections. Firstly, they
submitted that the road connecting their properties and that
of the
second respondent to the nearest public road, was a private road, and
they objected to the increased traffic on that road
as a result of
patronage of the sports bar. I may add in passing that the
appellants’ attitude was that the second respondent
was still
conducting the business of a sports bar, while the second respondent
said that by then he had closed the sports bar.
Nothing, however,
turns on this aspect. Secondly, the appellants objected to the
unacceptable noise which they said was generated
late at night as a
result of patronage of the sports bar. Thirdly, they said that there
was insufficient water from boreholes to
accommodate the
substantially increased usage and sewerage facilities.
9.
More importantly, however, is that the appellants stated specifically
in their subsequent review application, and also in argument
before
this court, that they would not have opposed the second respondent’s
application for the establishment of a township
had it not been that
the second respondent sought to have erf 8 zoned as a place of
refreshment. It was stated that if the erf
had also been zoned as
residential, the appellants’ attitude to the township
application would have been different. The main
concern of the
appellants
had always been the conducting of a bar which, incidentally, and as
mentioned before, they say the second respondent
is still conducting
to this day.
10.
After the aforesaid hearing on 27 June 2002 the first respondent
resolved on 29 July 2002 to approve the application, subject
to
certain conditions, and on 19 August 2002 informed the appellants
thereof in writing. The property was approved as a township
with nine
erven: and only one of the erven, erf 8, was zoned differently. Erf 8
was not zoned as applied for by the second respondent
but as a place
of refreshment. The zoning as a place of refreshment would only have
allowed for the erf to be used as a restaurant
and not as a bar. The
other eight erven were zoned for special residential purposes.
11.
In the aforesaid letter of 19 August 2002 the appellants were also
advised by the Directorate: Technical Services of the first
respondent that they may appeal against the decision in terms of
section 139 of the Town Planning Ordinance. The appellants took
up
this invitation and lodged an appeal with the Mpumalanga Townships
Board.
12.
In the proceedings before the Townships Board the second respondent
objected in limine to the appellants’ right to appeal
since the
relevant legislation only allowed for an appeal by an “objector”,
which the appellants were not. This was
because the appellants have
failed to timeously object to the second respondent’s
application after publication thereof.
The appeiiants were thus only
“interested parties” and not “objectors”,
and, as
such,
had no right of appeal. The Townships Board upheld the second
respondent’s objections and the appeal was struck from
the
roll. The appellants were informed of the Townships Board’s
decision on 20 May 2003.
13.
On 18 June 2003 the first respondent issued a certificate in terms of
section 101 of the Town Planning Ordinance, certifying
that the
second respondent had complied with the conditions set by the first
respondent. This certificate was withdrawn and a fresh
one issued on
29 October 2003. On 10 February 2004 the property, which was then
known as Nelspruit Extension 32, was declared an
approved township in
terms of section 103 of the Town Planning Ordinance.
14.
On 29 July 2004 the appellants and the other applicants launched the
review application before ihe court a quo. Principally
the applicants
sought to review the first respondent's decision of 27 July 2002 to
approve the establishment of the Township, and,
in particular, the
decision to zone one of the erven in the Township as a special place
of refreshment. The main ground on which
the application was based
was the alleged non compliance of the conditions which were
originally set for the establishment of the
township and which,
according to the appellants, had not been complied with.
15.
The certificates in terms of sections 101 and 103 were also sought to
be reviewed and set aside for basically the same reason.
16.
The first respondent and the second respondent opposed the
application
and
apart from responding to the allegations in the founding papers, also
submitted in limine, inter alia, that there was an unreasonable
delay
in the bringing of the application and that it was brought outside
the period of 180 days allowed for by the provisions of
the Promotion
of Administrative Justice Act, Act 3 of 2000 (“PAJA”).
17.
Regarding the delay the court a quo analysed all the facts as they
played out over time and regarding the appeal proceedings
before the
Townships Board found that the appellants had known since the hearing
on 27 June 2002 that they were not “objectors”
as
envisaged in the Town Planning Ordinance, and consequently that they
had known since that date that they would not be entitled
to appeal
to the Townships Board. That being the case the court found the
period which it took the appellants to launch the review
application
to be 2 days short of two years, calculating from the day of the
original decision by the first respondent.
18.
The court a quo also referred to the fact that even if the period is
calculated from the day of the dismissal of the appeal
by the
Townships Board, being 22 May 2003, it still leaves a period of some
fourteen months which transpired before the appellants
launched the
review application.
19.
The court found that the appellants failed to explain the long delay
and that the rather bald submission that it would be in
the interest
of justice to entertain the application, was not sufficient. The
court a quo found the delay to be unreasonable in
the circumstances
of the case. In deciding the question whether condonation should be
granted to the appellants the court referred,
inter alia, to
Wolgroeiers Afslaers (Edms)Bpk v Munisipaliteit van Kaapstad 1978(1)
SA 12 (A) at p41 D-F. The court also referred
to the fact that since
29 Jufy 2002 the second respondent had commenced to set up his
restaurant and the court referred to the
negative consequences which
would result for the second respondent if the review should succeed
at such a late stage. Considerations
of harm and the interests of
finality to administrative proceedings were some of the factors
considered by the court in finally
deciding that the appellants’
delay was inordinate and unreasonable and that condonation should be
refused. The application
was thus refused on the basis of the first
point in limine and the court found it unnecessary to deal with the
other issues raised
by the parties.
20.
In respect of costs the court a quo made a punitive order against the
appellants. In deciding this issue the court, inter alia,
referred to
the merits of the application. It found that the main thrust of the
application was directed against the bar which
the second respondent
was allegedly operating. As stated before the first respondent did
not zone the particular erf in a manner
that would allow for the
conducting of a bar, but merely as a place of refreshment, i.e., a
place from where a restaurant business
may be conducted.
21.
The court a quo found that if the second respondent was in fact
operating a bar, as alleged by the appellants, the appellants’
remedy would not be to take the first respondent’s decision
regarding the establishment of the township on review but to
lodge a
formal complaint with either the police, the
Liquor
Board or any other competent authority. The court thus found the
application to be misconceived. It further found the appellants’
persistence in proceeding with the application, which the court
described as “still-born”, despite being alerted to
the
inherent difficulties, as particularly worrisome and one of the
important considerations for finding the appellants’
conduct an
abuse of the court’s process which could not be condoned and in
respect of which the court should show its displeasure.
These factors
resulted in the punitive costs order.
22.
I shall deal with the aforesaid issues again below but need to first
refer to the failure by the appellants to prosecute the
appeal and
their applications for condonation in that regard.
The Present Appeal
23.
In granting leave to appeal against the judgment and order of the
court a quo, the Supreme Court of Appeal directed the appellants
to
file their Notice of Appeal within 20 days. That directive accords
with Rule 49(2) of the Uniform Rules of Court. The result
was that
the appellants had to file their Notice of Appeal within 20 days,
i.e., on or before 24 August 2006, or within such longer
period as
may upon good cause be permitted. The appellants filed a condonation
application for the late filing of the Notice of
Appeal which
occurred on 10 October 2006, thus some 12 days late.
24.
Apart from the aforesaid and in order to successfully prosecute the
appeal, the appellants were compelled, in terms of Rule
49(6), to
apply in writing for a date for the hearing of the appeal within a
period of 60 days from the delivery of the Notice
of Appeal. This
means that the appellants should have applied for a trial date by the
first week of January 2007. Failure to make
application for a date
for the hearing of the appeal as required by Rule 49(6), results, in
terms of the same sub-rule, in the
appeal being deemed to have
lapsed.
25.
Rule 49(7) also applies and requires copies of the record of
proceedings to be filed at the same time that the application for
a
trial date is made. There are exceptions to this rule as appears from
Rule 49(7)(a) itself which provides that the Registrar
may accept an
application for a date for the hearing without the necessary copies
of the record if:
“
(i)
the application is accompanied by a written agreement between the
parties that the copies of the record may be handed in late;
or
(ii)
failing such agreement, the Appellant delivers an application
together with an affidavit in which the reasons for his omission
to
hand in the copies of the record in time are set out and in which is
indicated that an application for condonation of the omission
will be
made at the hearing of the appeal.”
26.The
appellants never attempted to reach an agreement with any of the
respondents as envisaged in Rule 49(7)(a)(i) and also failed
to
deliver an application and affidavit as envisaged in Rule
49(7)(a)(ii).
27.
The Record was delivered on 25 January 2007 and an application for a
date for the hearing of the appeal was delivered on 1 February
2008.
These actions thus occurred approximately one year and four months
after the Notice of Appeal was filed and almost one year
and one
month late. The appeal is thus deemed to have lapsed. This resulted
in the second application for condonation filed by
the appellants
asking for this court to reinstate the appeal.
The Condonation Applications
28.
It is necessary to consider the two condonation applications. In the
first application, which is for the condonation of the
iate filing of
the Notice of Appeal, the founding affidavit was made by the
appellants’ attorney. He stated that on receipt
of the order
from the Supreme Court of Appeal granting leave to appeal, he
instructed counsel and his Pretoria correspondent to
take all
necessary steps to prosecute the appeal. The next thing that happened
was the first respondent's attorney advising on
29 September 2006
that since the time for filing the Notice of Appeal had lapsed, and
since the appeal had therefore lapsed, his
client would proceed to
recover its costs. On 2 October 2006 a similar notice was received
from second respondent’s attorney.
29.The
appellants’ attorney responded in a letter of 4 October 2006
saying that the appellants had every intention to proceed
with the
appeal but that there had been some difficulty in obtaining documents
from Bloemfontein which were required by counsel
to draft the Notice
of Appeal. It was confirmed that the documents had by then been
obtained and that the Notice of Appeal and
a condonation application
would be filed by the end of the following week.
30.
The reasons for the delay were stated to be the following: That the
record is lengthy; that the legal and factual questions
were complex;
that the clients had experienced great difficulty paying counsel’s
and correspondent’s fees incurred;
in light of the financial
constraints, only junior counsel had been briefed; due to prior
commitments counsel was not able to meet
with the attorney until 19
September 2006; counsel requested that a copy of the pleadings filed
in the Supreme Court of Appeal
be provided to him; due to the
financial constraints the attorney did not keep a complete set of the
pleadings; the Pretoria correspondents
were instructed to request a
full set of pleadings from the Bloemfontein correspondents; this set
of pleadings was only received
on 3 October 2006; consultation with
counsel was only on 5 October 2006.
31.
Since the delay is not long and in view of my findings in respect of
the second
condonation application, no more than a few remarks need
to be made in respect of this application. As pointed out on behalf
of
the respondents, the Application for Appeal mirrors the
Application for Leave to Appeal which had earlier been submitted to
the
Supreme Court of Appeal. Two counsel had been briefed earlier and
one would have expected that the new Notice of Appeal would not
read
any different from the original Notice for Leave to Appeai. i cannot
find any reason why the full set of papers thus had to
be
considered
again. But even if it was a fair request, I fail to understand why
the Bloemfontein attorneys had to be contacted to
supply a record.
The attorney of record may not have had a copy of the record but what
happened to the two copies, or at least
one, which the two counsel
appearing for the appellants originally had as part of their briefs,
was not explained. Lastly I may
note that no details were given
regarding the alleged financial constraints. It was also rather
glaring that none of the appellants
confirmed these allegations made
on their behalf by their attorney in his affidavit.
32.
The second condonation application relates to the failure to
prosecute the appeal by timeously applying for a date for the hearing
of the appeal and by timeously filing a record of appeal. As stated
before, the appellants were approximately one year and one
month late
in this regard..
33.
Again, the founding affidavit supporting the application was deposed
to by the appellants’ attorney of record. None of
the
appellants filed an affidavit. It was only at the replying stage, and
after this lacuna had been identified by the second respondent
in his
answering affidavit, that a confirmatory affidavit by the first
appellant was attached to the replying affidavit which was
deposed to
by the attorney. The other appellants filed no affidavits.
34.
In the founding affidavit, which I must add was deposed to on 20
August 2007, the appellants’ attorney said that his Pretoria
correspondent held instructions to see to it that the further steps
in the prosecution of the appeal were attended to. It would
be
recalled that the appellants had to take the required steps by the
first week of January 2007. He said that the correspondent
sought
confirmation from him that he may instruct a local transcription
service to prepare the record of proceedings. On 31 October
2006 the
correspondent was instructed to proceed.
35.
The attorney then stated that his clients had difficulty in raising
the necessary funds to pay for the litigation thus far
and at that
stage they were not in a position to place him in funds to pay the
correspondent’s accounts. He knew that the
record would require
a substantial amount and thus decided to first refer the matter to
his clients. The clients wanted an estimate
of the costs for the
prosecution of the appeal. He then asked his correspondent to obtain
a quotation from the subscription service.
36.
On 15 November 2006 the correspondent informed him that he required
R7500,00 in respect of his own fees and disbursements. On
17 and 22
November 2006 the attorneys again had contact and it was confirmed
that the transcribers had been instructed to prepare
a record.
37.
On 14 December 2006 the correspondent advised that the transcribers
required a full set of documents in order to prepare the
record. The
attorney said that his offices closed for the holiday and he only
attended to the matter on 12 January 2007. It should
be noted that by
this time the appeal had already lapsed.
38.
On 27 February 2007 the correspondent informed the attorney that the
transcribers had informed him that certain documents were
missing
from the bundle handed to them. It is not known when the bundle was
handed to them but accordina to a letter from the transcribers
it
appears that they required only 9 pages which they did not have and
that they required coloured copies of another 10 pages.
39.The
attorney then said that in May 2007 he was placed in funds to pay the
Pretoria and Bloemfontein correspondents.
40.
Then the attorney says that on 30 July 2007 the second respondent’s
attorneys notified him that the appeal was deemed
to have lapsed and
that they intended to proceed with their bill of costs. Also on 30
July 2007 a letter was received from the
transcribers saying, inter
alia, that the full amount for the preparation of the record and the
required number of copies was R27000.00
and that a deposit of R18
000,00 was required before they would proceed with the preparation of
the record.
41.On
3 August 2007 the attorney informed the second respondent’s
attorney that every effort was being made to prosecute the
appeal and
that condonation would be applied for.
42.
Then the attorney stated in his affidavit that his clients were not
able to pay the transcribers immediately and that he was
thus forced
to prepare the record himself. He said that he instructed counsel 10
assist him in this regard.
43.
The attorney then stated that the appellants would suffer prejudice
if condonation was not granted whilst the respondents would
suffer no
prejudice should the appeal proceed.
44.The
respondents opposed the application and filed answering affidavits. A
replying and confirmatory affidavit was then filed.
In the replying
affidavit the
appellants’
attorney stated that the first respondent was driving the appeal and
took it upon himself to obtain funding from
the other appellants. He
stated that the first appellant had enormous difficulties to persuade
the other appellants to contribute
to the costs of the matter. He
emphasised the great costs of the appeal and the preparation of the
record and that it was a major
issue which the appellants had to
consider. He also blamed the transcribers for not being able to
prepare the record as was expected
of them in terms of the Rules of
Court.
45.
The attorney then stated that the first applicant is a professional
photographer and struggles to make a living. He also had
substantial
medical costs due to a heart condition which had twice required
surgery in the previous 18 months.
46.
The attorney then submitted that the second respondent was not
prejudiced by the appeal procedures because he was carrying on
business from the premises as before. He submitted that the first
respondent also suffered no prejudice and that any prejudice
suffered
was greatly outweighed by the prejudice which the first respondent
may suffer if the condonation is not granted. He also
submitted that
the matter was of great importance to the appellants.
47.
It was common cause that the appellants’ appeal had lapsed as a
result of the failure to timeously comply with the provisions
of Rule
49(6), i.e., to make application for a date for the hearing of the
appeal. In terms of Rule 49(6)(b) this court can reinstate
the appeal
if the appellants have shown good cause for such reinstatement.
48.
Our courts have many times in the past considered what constitutes
“good cause” for the granting of condonation
for
procedural shortcomings in appeals. There can be no comprehensive
definition of this concept for to do so would tend to hamper
the
exercise of the court’s wide discretion in this regard. It is
for the court to exercise a judicial discretion in every
case with
regard to all the circumstances of the particular case.
49.
In United Plant Hire (Pty) Ltd v Hills And Others
1976 (1) SA 717
(A)
at
p720
E-G, Holmes JA stated the principles upon which the court exercises
its discretion as follows:
“
It
is well settled that, in considering applications for condonation,
the Court has a discretion, to be exercised judicially upon
a
consideration of all of the facts; and that in essence it is a
question of fairness to both sides In this enquiry, relevant
considerations may include the degree of non-compliance with the
Rules, the explanation therefore, the prospects of success on appeal,
the importance of the case,, the respondent's interest in the
finality of his judgment, the convenience of the Court, and the
avoidance of unnecessary delay in the administration of justice. The
list is not exhaustive.
These
factors are not individually decisive but are interrelated and must
be weighed one against the other; thus a slight delay
and a good
explanation may help to compensate for prospects of success which are
not strong.”
50.
In Van Wyk v Unitas Hospital And Another (Open Democratic Advice
Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) the court stated the
following on p477 A-B in regard to the approach of a court exercising
its discretion: “[20] This
court has held that the standard for
considering an application for condonation is the interests of
justice. Whether it is in the
interests of justice to grant
condonation depends on the facts and circumstances of each case.
Factors that are relevant to this
enquiry include but are not limited
to the nature of the relief sought, the extent and cause of the
delay, the effect of the delay
on the administration of justice and
other litigants, the reasonableness of the explanation for the delay,
the importance of the
issue to be raised in the intended appeal and
the prospects of success."
51.
At p 477E the court held that an applicant for condonation must give
a full explanation for the delay and that in addition the
explanation
must cover the entire period of delay. Furthermore, that the
explanation given must be reasonable. At p480 A the court
referred to
the principle that and inordinate delay may induce a reasonable
belief that the order had become unassailable. Furthermore
that a
litigant is entitled to have closure on litigation and that the
principle of finality in litigation is intended to allow
parties to
get on with their lives. Then the following was stated:
“
After
an inordinate deiay a litigant is entitled to assume that the losing
party has accepted the finality of the order and does
not intend to
pursue the matter any further. To grant condonation after such an
inordinate delay and in the absence of a reasonable
explanation,
would undermine the principle of finality and cannot be in the
interests of justice.”
52.
In Unitrans Fuel And Chemical (Pty) Ltd v Dove-Co Carriers CC
2010
(5) SA 340
(GSJ) the full bench of that division found per Halgryn
AJ, as follows at 344 F-G:
“
[28]
Applicants for condonation in our High Courts must take note of two
fundamentally important issues which arise from this judgment,
ie:
[28.1]
The entire period of the delay has to be explained thoroughly and the
longer the period of delay, does not detract from this
fact, and;
[28.2]
if the reason for the delay is the non-cooperation by the contracted
transcribers, then substantial delays, such as the one
herein, will
not constitute a sufficient reason/explanation for the delay without
proof of attempts to compel the transcribers
to provide the
transcripts.”
53.
At p344 I to 345 A the following was added regarding the preparation
of the record and difficulties experienced in obtaining
records from
transcribers:
"[30]
Litigants in our civil courts have no choice but to utilise the
transcribers contracted to the Minister of Justice, and,
although not
party to that contract, they undoubtedly have the necessary locus
standi to bring an application to compel them and/or
the Minister of
Justice to provide the transcripts in the event of their defaulting
on their contractual obligations.
[31]
It is indeed a sad day that it has come to this, but to burden judges
of appeal with condonation applications in which the
delays are of
this magnitude is simply unacceptable. In future applicants for
condonation in matters such as the present will have
to show their
attempts at compelling the transcribers to provide the record,
including, but not limited to the bringing of an application
to court
to compel compliance, as part of their explanation for the delay and
to show that they are not at fault."
54.
From the aforesaid it is clear that condonation for non-observance of
the Rules is by no means a mere formality. See generally
the
discussion m Erasmus, Superior Court Practice, at B1-361 and further
and the authorities there referred to See also Oudekraal
Estates
(Pty)Ltd v City of Cape Town and others 2010(1) SA 333 (SCA) at 343
C.
55.
In the present matter Adv Bester, who appeared with Adv Balmelli for
the appellants, conceded that the delay was indeed substantial.
During argument he quite properly conceded that he cannot submit that
the delay had been adequately explained and also conceded
that
periods, and sometimes long periods, where nothing happened, had not
been dealt with at all in the appellants’ affidavits.
He
submitted, however, that the attorney did what he could with the
available funds and that the respondents were not entitled
to assume
that the appeal had been abandoned. He asked the court to accept that
it is very costly for an individual to conduct
an appeal.
56.
In my view the appellants failed dismally to give an adequate
explanation for the long delay. Long periods of total inaction
were
simply not addressed at all and many questions which begged for an
explanation were not answered at all or inadequately addressed.
I
shall merely refer to a few salient features in this regard.
57.
Firstly, the appellants’ attorney’s affidavit is replete
with hearsay allegations which were so bald and without
the detail
one would have expected, that the mere confirmation thereof by one of
the appellants simply did not suffice. One example
relates to the
issue of financial constraints. In the answering affidavit of the
first respondent it was submitted that the founding
affidavit failed
to place facts before the court to enable the court to exercise its
discretion in favour of the appellants in
regard to the alleged
financial difficulties of the appellants. It was further stated that
the first appellant is a professional
photographer by trade and had
been in business for many years. The second appellant is a medical
practitioner. The third appellant
is the owner of the Photo First
Store in the Riverside Mall, the largest commercial and retail mall
in Neispruit and had been in
business for twenty years. Also that the
third appellant recently sold a stand in the Shandon Estaies outside
Neispruit for
R1,8
million. The fourth appellant is a long-term insurance Broker and has
been involved in that business for his own account for
many years.
These allegations were not denied except for the first appellant who
said that he struggled financially.
58.
Coupled with the above is the fact that it appears that the
transcribers required R27 000,00 for the full record and the required
copies and that a deposit of a mere R18 000,00 was required at that
point. I cannot accept, without more, that the appellants would
not
have been able to easily raise this relatively small amount in order
to prosecute the appeal. Their complete silence to explain
their
alleged financial difficulties is so glaring that I cannot find the
allegations to be credible.
59.
The main difficulty with the application is, however, the complete
failure to thoroughly explain the entire period of the delay.
From
the attorney’s affidavit it appears that sometimes months went
past without anything happening, or for which there was
no simply no
explanation. The suggestion that some fault may lie with the
transcribers, is also not supported by the meagre facts
placed before
the court. It was not stated when instructions were given to the
transcribers and there is a complete silence regarding
any follow-ups
with them. In fact, it appears that there was very little contact
with the transcribers and that there were long
unexplained periods of
delay during the whole process.
60.
It was not explained, for example, why the attorney and the advocate
had to become involved in the preparation of the record.
Only a few
pages were
required
by the transcribers and the deposit of R18 000,00 could hardfy have
been the reason for any delay. It is also not known
what the attorney
and advocate did in respect of the record and when they did it. There
is also no allegation whatsoever of any
of the appellants making
enquiries about the prosecution of the appeal and in respect of the
long delay in the matter.
61.
The delay was an inordinate delay of more than a year. The attempts
to explain it were so inadequate, vague and flimsy that
the
impression is gained that it was probably all a ruse. I say this
because it was never absolutely necessary for the appellants
to file
a record within the first sixty days. As stated before, Rule 49(7)(a)
allows for the Registrar to accept an application
for a date for the
hearing without the necessary copies of the record if the application
is accompanied by a written agreement
between the parties that the
copies of the record may be handed in late or if the Appellant
delivers an affidavit in which the
reasons for his omission to hand
in the copies of the record in time are set out and in which it is
indicated that an application
for condonation of the omission will be
made at the hearing of the appeal. These factors were not addressed
by the appellants at
all.
62.
Having come to the aforesaid findings that the delay was inordinate
and was not adequately explained, it is necessary to consider
the
other aspects mentioned above which have to be considered in
applications of this nature in order to decide whether condonation
should nevertheless be granted.
63.
I accept that the case is important for the appellants but it is of
even more importance to the second respondent. The appellants
have
indicated that
they
do not oppose the idea of the establishment of a township but have it
against the noise and the traffic which accompanied the
second
respondent’s sports bar operations. They have alternative
remedies to address those complaints if the second respondent
does
not comply with the zoning requirements and a setting aside of the
township establishment is unnecessary. On the other hand,
the second
respondent has a huge financial interest in the matter and he has an
interest in the finality of the judgment. After
all, as things stand
at present, the township had been established more than a decade ago
and the second respondent has been conducting
his restaurant for
almost the same period.
53.
The prospects of success also play a role in the exercise of the
discretion by this court. In this regard I am of the view that
the
appellants’ prospects of success should the appeal be
reinstated, is so slender that condonation would not be justified.
I
say that for, inter alia, the following reasons:
"[30]
Litigants in our civil courts have no choice but to utilise the
transcribers contracted to the Minister of Justice, and,
although not
party to that contract, they undoubtedly have the necessary locus
standi to bring an application to compel them and/or
the Minister of
Justice to provide the transcripts in the event of their defaulting
on their contractual obligations.
[31]
It is indeed a sad day that it has come to this, but to burden judges
of appeal with condonation applications in which the
delays are of
this magnitude is simply unacceptable. In future applicants for
condonation in matters such as the present will have
to show their
attempts at compelling the transcribers to provide the record,
including, but not limited to the bringing of an application
to court
to compel compliance, as part of their explanation for the delay and
to show that they are not at fault."
54.
The court a quo dismissed the review application for the reason that
an unreasonable time had passed and that condonation could
in those
circumstances not be granted. The court was clearly correct in
finding that the initial decision to establish the township
on 27
June 2002 was the administrative decision which stood to be reviewed
and not the later administrative acts, such as the Notices
in terms
of the Township Planning Ordinance. Consequently that the time from
which a reasonable period or the period of 180 days
in terms of PAJA
had to be calculated, was the 27th June 2002.
66.
Against this background the reasons of the court a quo for refusing
condonation cannot be faulted. Even if the abortive appeal
process to
the Townships Board is brought into consideration, the remaining
period still constitutes such a long delay, for which
no adequate
explanation had been presented, that the finding of the court a quo
cannot be faulted. In the result, the appellants’
prospects of
success on appeal against the judgment and order of the court a quo
are so weak that it could not make up for the
inadequate explanations
for the delay in the prosecution of the appeal to this court.
67.
But even if one looks beyond the reasons of the court a quo for
dismissing the review application and considers the merits of
that
application, I find the prospects of succeeding on those grounds also
rather weak. I have referred to the fact that the appellants'
main
concern was the consequences which allegedly resulted from the fact
that the second respondent operated a bar on the property.
However,
the second respondent does not have the authority to operate a bar
and he said that he does not do so. If he does, or
if he transgresses
what the operation of a restaurant allows him, or if he does anything
else which is unlawful, the appellants
haVc 3uci^Ucilc oucinative
remedies to address such problems. A review application to set aside
the establishment of the township
was not necessary at all. In fact,
township establishment relates to the subdivision of land and is done
by following the procedure
set out in the Town Planning Ordinance to
change the use of land. Zoning, on the other hand, may be described
as the creation of
districts within a citv where different hiiilriinn
rpnnlatinns arp annlied and within which different use activities are
permitted
or prohibited. Zoning, therefore, is an aspect of town
planning which is primarily concerned with certain restrictions or
limitations
of ownership and use of land. The appellants’
displeasure with the zoning of the one erf to allow for the operation
of a
restaurant is accordingly irrelevant when considering the
establishment of the township in accordance with the requirements and
procedures set out in the Town Planning Ordinance, I consequently
agree with the court a quo that the application was misconceived.
68.
The second line of attack was based on the alleged non-compliance of
the conditions set by the first respondent for the establishment
of
the township. Those conditions were numerous and related, inter alia,
to the road, water reticulation, service agreements that
have to be
entered into, the appointment of a sound engineer, et cetera. The
appellants submitted that these conditions had to
be complied with
before the township could be established and that the second
respondent’s decision should be set aside for
that reason as
well.
69.
Regarding the road it appears that it was initially thought that the
road was a so-called private road and that a right of
way had to be
registered in favour of the second respondent. The respondents
investigated the issue and obtained legal opinion
from senior counsel
and came to the conclusion that the road was in fact a public road
and that the registration of a right of
way was not necessary. It was
not necessary to adjudicate this dispute, i.e., whether a servitude
of right of way should be registered
or not, in the review
application.
It
is a separate and formal dispute which may be adjudicated in separate
proceedings.
If the registration of a right of way is eventually found to be
necessary, so be it, but it could hardly, in the circumstances,
have
resulted in the review and setting aside of the decision to
establishment the township.
70.
Regarding the other conditions the respondents submitted that they
were predevelopment conditions, i.e., conditions that
have to be
met prior to the physical development of the township and not
pre-proclamation conditions which have to be met prior
to the
proclamation of the township. It was submitted that these conditions
will have to be complied with before any erven could
be transferred
to future purchasers and before any building operations on the erven
can commence. Having regard to the original
resolution and the nature
of the conditions, these submissions appear to be correct. Frstly,
the first respondent referred to the
restrictions and conditions as
“development restrictions and conditions”. Secondly, the
conditions mostly refer to
the standard type of conditions in matters
of this nature, such as those relating to necessary services to be
provided in a sustainable
manner, the amendment of layout plans to
reflect the proposed sewerage system, the conclusion of service
agreements with the first
respondent regarding the provision of
services, the erection of road traffic signs, and other such matters.
Those are aspects which
have to be in place before development can
take place but are not requirements for the initial establishment of
the township.
71.
The other conditions relate to the one erf and more particularly the
business of a restaurant which was envisaged by the zoning
of erf 8
as a place of refreshment. So, for example, it was required that
plans for the existing structure be submitted to the
first
respondent, that sufficient parking be provided, that kitchen
facilities should comply with certain criteria, that a servitude
of
right of way be registered, and that a sound engineer be appointed to
ensure that the noise from the restaurant does not cause
a
disturbance to adjacent property owners.
72.
Clearly, the many conditions and restrictions relating to the
existing building on erf 8 and the restaurant business to be
conducted on that erf, can have nothing to do with the establishment
of the township. As stated, the other conditions also do not
relate
to the establishment of the township itself. For example, the
approval of the relevant department of water affairs will
only become
relevant once the water is being supplied to the township. Full
service agreements are also something for the future
and would relate
to the services which the developer of the township will have to put
in place during the development phase and
when it is finally
connected to the bulk services rendered to the township by the first
respondent. These aspects will also probably
be done in conjunction
with the development of, and bulk supply by the first respondent to,
neighbouring areas which are also at
this time being developed.
73.
Apart from the aforesaid the compliance or failure to comply with the
aforesaid conditions is hardly an issue which can concern
the
appellants very much, especially if regard is had to the fact that
the appellants opposed the establishment of the township
because they
wanted to prevent the second respondent from operating a bar in the
area. The appellants had the
opportunity
to state their case prior to the decision to establish the township
and the decision regarding the zoning of the erven.
There was no
suggestion that the first respondent made an error in law to
establish the township or to zone erf 8 as special for
refreshment. A
case was not made out that the reasonable decision-maker would not
have reached the same conclusions. In fact, it
is clear that much of
what the appellants wanted, had been acceded to. So, for example, the
zoning granted would prevent the operation
of a bar. Also, only one
of the erven was zoned for this purpose and not two as applied for by
the second respondent. Other restrictive
conditions were also set,
most notably those relating to the issue of noise which may result
from the business to be conducted
from erf 8. The issue of parking
was addressed and also the issue of the use of the access road,
although the formal registration
of a servitude might have fallen
away.
74.
It is not necessary to say more about this aspect of the case. I
regard the appellants’ prospects of success on the grounds
relating to the conditions referred to by the first respondent, as
weak.
75.
The last aspect which was submitted on behalf of the appellants
related to the costs order made by the court a quo. It was submitted
that the order was wrong and that it should be rectified on appeal.
As such, so it was submitted, the prospects of success in this
regard
should convince this court to grant the required condonation and to
reinstate the appeal.
76.
The court a quo exercised a discretion when it made the costs order.
The court regarded the merits of the case and regarded
it as
hopeless. I have already indicated that in that regard I do not hold
a different opinion. But the court went further. It
found that the
appellants persisted despite being made aware that their application
was misconceived. For this and other considerations
the court made
the costs order. I cannot find that the court a quo misdirected
itself or exercised its discretion wrongly, having
regard to all the
circumstances of the case.
77.
In the result I find that the prospects of success in this regard can
by no means move this court to grant the required condonation
and to
reinstate the appeal.
78.
Regarding the costs of the appeal it was submitted on behalf of the
appellants that the costs relating to the application for
leave to
appeal should be paid by the first and second respondents. There is
no merit in this submission. There is no reason why
all the costs
should not follow the event. The second respondent submitted that the
costs of senior counsel should be awarded as
well. In my view the
matter was of sufficient difficulty and importance to merit the
employment of senior counsel where applicable.
It was a prudent
precaution and not a luxury.
79.
In the result the following order is made:
1.The
application to have the appeal reinstated is dismissed.
2.
The appellants are ordered to pay the first respondent’s and
second respondent’s costs of the appeal which costs
shall
include the following:
a.
The costs of the application for leave to appeal to the Supreme Court
of Appeal;
b.
The costs of both the condonation applications before this court:
c.
The costs of senior counsel, where so appointed, in respect of the
appeal, the application for leave to appeal to the Supreme
Court of
Appeal and the condonation applications before this court.
C.P.
RABIE
JUDGE
OF THE HIGH COURT I agree
R.G.
TOLMAY
JUDGE
OF THE HIGH COURT
I
agree
H.J;
DE VOS
JUDGE
OF THE HIGH COURT