About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2012
>>
[2012] ZAKZDHC 13
|
|
Body Corporate of Dolphin Cove v Kwadukuza Municipality and Another (8513/10) [2012] ZAKZDHC 13 (20 February 2012)
IN THE KWAZULU NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO.: 8513/10
DATE HEARD: 1 FEBRUARY 2012
DATE DELIVERED: 20 FEBRUARY 2012
In the matter of:
THE BODY CORPORATE OF DOLPHIN COVE
…...............................
APPLICANT
AND
KWADUKUZA MUNICIPALITY
….............................................
1
ST
RESPONDENT
KWAZULU-NATAL DEPARTMENT
AGRICULTURE, ENVIRONMANTAL AFFAIRS
AND RURAL DEVELOPMENT
…...............................................
2
ND
RESPONDENT
JUDGMENT
D. PILLAY J
Introduction
Following a mighty storm in March
2007, the Balito coastline in northern KwaZulu-Natal was devastated.
The dunes adjoining the
Dolphin Cove property development that the
applicant body corporate manages was severely eroded. A promenade on
the dunes was
washed away. The first respondent municipality
reconstructed the promenade in September 2009. In this application,
the applicant
seeks the removal of the promenade. It alleges
firstly, that the promenade is reconstructed on Dolphin Cove.
Secondly, the municipality
acted unlawfully and in breach of the
National Environmental Management Act 107 of 1998 (NEMA) by
constructing the promenade
without prior authorisation of the second
respondent, the KwaZulu-Natal Department of Agriculture,
Environmental Affairs and
Rural Development. Thirdly, as the
promenade will compromise the integrity of the dunes, the stability
of Dolphin Cove is threatened.
Although the municipality denies the
encroachment, it cannot say where the boundary is until the High
Water Mark (HWM) settles
in about two years or so, and the surveyor
general has resurveyed the property. However, as the property is
defined by its extent
which is fixed in its title deed it is
ager
limitatus.
Accordingly, the applicant cannot claim more land
than that registered against its title in the deeds registry.
As for committing offences under s
24F of NEMA, the municipality contends that s 24G allows it to
correct its unlawful activity.
To this end it has applied to the
department to approve the construction of the promenade and is
awaiting the latter’s
decision. As for destabilising the
property, the municipality maintains that the promenade is a public
facility constructed by
public demand and extensive public
participation to provide necessary access to the beach.
Is there an encroachment?
The starting point is the title deed
to the property. The property was held under title deed 1152/1947.
Originally it measured
10 075 acres or 4 077 square metres according
to diagram SG no. 762/1945. In 1976 the property was subdivided.
Accordingly, sub-divisional
diagram SG 4928/1975 depicts the
property as Lot 1 held under title deed no. 16461/1976 to measure
2039 square metres. By simple
subtraction, the remainder was
recorded as 2038 square metres. The remainder continued to be held
under title deed 1152/47 but,
the drawing attached to it is not a
consequence of a survey or measurement of the remainder after Lot 1
was severed.
Section 20 (1) (a) of the Land Survey
Act 8 of 1997 (LSA) requires survey diagrams for subdivisions of
land but does not insist
on diagrams accompanying the remaining
extent. Sub-section 2 provides that when a subdivision is
registered, the surveyor general
must define on the title deed of
the remaining extent the geometrical figure representing the
subdivision and deduct its numerical
extent. Such deduction can be
made on a general plan instead of on a diagram.
The LSA
distinguishes between a ‘diagram’ and ‘general
plan’.
1
Significantly, a
diagram is a document containing geometrical and verbal
representations of a piece of land. In contrast, the
general plan is
a plan representing the relative positions and dimensions of two or
more pieces of land. Therefore, the drawing
attaching to the
property is a general plan showing the remainder in relation to Lot
1 of Compensation Beach. SG no 762/1945
attached to the founding
affidavit
2
represents Lot 1
before it was subdivided. It reappears with the 1975 sub-divisional
endorsement at page 439 in the bundle to
show the remainder and Lot
1. Dolphin Cove is developed on the remainder with sectional plan
(as defined in the Sectional Titles
Act 95 of 1986 (STA)) SG657/1996
accompanying its title deed T5225/1996.
3
Deeds, diagrams
and general plans are open to rectification.
4
Consequently, even
though registered deeds must reflect the extent of the property and
serve as
prima
facie
proof
of their contents, the extent of a property is not immutable or
beyond rectification either in law or fact.
In this case, the
eastern boundary of the property is the seashore. The seaward
boundary is determined by the HWM. The position
of the seaward
boundary has probably changed because the HWM has shifted seaward.
The municipality acknowledges that if the HWM
is resurveyed in a few
years, it could result in the extent of the property increasing.
5
However, it
contends that Dolphin Cove cannot have more land than that held by
its title deed. Furthermore, until the resurvey
and amendments of
the title deed and drawings occur, it maintains that Dolphin Cove is
bound to the extent reflected in the existing
title deed.
Mr Hoffman, the
municipality’s professional land surveyor confirms that the
seaward boundary is the curvilinear line 12.19
metres from and
parallel to the HWM but he persists that the HWM is that established
on SR76/1941 and that there has been no
resurvey of the HWM
registered since.
6
In support of his
opinion, he contends that other land surveyors, including Mr B.
Woombell had also adopted the HWM set in SR76/1941.
Mr Hoffman
opines that land surveyor Mr Baker, who established the Dolphin Cove
sectional title scheme under SG657/1996 was wrong
to adopt Mr
Woombell’s diagram SR1565/1975. Mr Hoffman acknowledges that
the promenade ‘appears to encroach slightly
onto the property’
7
and that this is
‘an ostensible, minor encroachment’ but persists that in
his professional opinion he cannot state
that there is an
encroachment because it is not possible to re-establish the seaward
boundary at this point.
As regards the
property being
ager
limitatus
Mr Hoffman
aligns himself with Mr Boshoff, the municipality’s previous
land surveyor to opine that the extent of the property
is clear,
notwithstanding the curvilinear boundary. Nevertheless, he concedes
that he is not competent as a land surveyor to
express such an
opinion. The municipality’s stance, therefore, is that the
applicant is bound to adopt the 1945 positioning
of the HMW.
8
Mr Hoffman cannot be right if for no
other reason but that it is common cause that the HWM has shifted
and its position is currently
unknown. At lease three transactions
registered since 1945 show that the 1945 position of the boundary
does not prevail.
During November
1975 and February 1976
9
Mr Woombell
surveyed the HWM under SR1565/1975 (SG 4928/1975). His resurvey
showed the HWM to differ considerably from its original
SR76/1941
position. As much as he wanted to adopt the 1941 position, the
surveyor general refused to allow him to do so. The
surveyor general
required the diagram to be reframed with the boundary being on the
irregular line 12.19 metres from the HWM
of the Indian Ocean. This
emerges from correspondence between the surveyor general and Wall
Marriot Paul and Borgen between January
and March 1976 attached to
the affidavit of Mr Dinkele, the applicant’s land surveyor.
10
Surveyors Wall
Marriot Paul and Borgen confirmed in their letter dated 12 March
1976 in reply to the surveyor general’s
instruction that ‘
the
High Water Mark has been plotted, showing the resurveyed position
’
.
11
To complete the
registration, SG4928/1975 and SR156/1975 were endorsed against
SG762/1945.
Consequently, the
resurveyed position was adopted and accordingly the surveyor general
approved SG 4928/1975.
12
In the
circumstances, the 1975 HWM replaced the 1941 HWM.
Furthermore, in
February 1996 when the sectional title scheme for the Dolphin Cove
development on the remainder was surveyed in
terms of the STA, Mr
Baker generated sectional plan SG D657/1996 which the surveyor
general approved on 11 November 1996.
13
The land data for
this plan was obtained from SR771/1996. The curvilinear boundary was
reproduced from Mr Woombell’s drawing
SR1565/1975 which
related to Lot 1 of Compensation Beach before its subdivision.
Beacons B and C representing the seaward boundary
on the original
diagram of Lot 1 i.e. on SG762/1945 coincide with the beacons on the
working plan accompanying SG657/1996. Sectional
plan SG657/1996 also
reflects the seaward boundary as the curved line 12.19 meters from
the HWM of the Indian Ocean. Once the
surveyor general approved the
general plan, everyone was entitled to rely on such approval until
it changed
14
because approval
signifies that the requirements of the LSA have been complied with.
15
When Mr Humphrey
drew the sewer and drain servitude diagram SG2739/1977, he reported
in SR1165/1977 that he had to resurvey the
HWM to determine whether
servitudes were required.
16
The surveyor
general inspected the HWM with Mr Humphrey on 7 October 1977.
SG2739/1977 read with SR1165/1977 is therefore a two
metre wide
sewer and drain servitude over Dolphin Cove.
17
Although Mr
Humphrey’s drawings do not depict the HWM, Mr Hoffman’s
drawings of May 2011 uses SR1165/1977 to position
the HWM and 12.19
m so far seaward that the promenade appears as a complete
encroachment on the Dolphin Cove property.
18
The November 2010
drawing by Mr W. S. Burwood of Wall Marriot Paul and Borgen
reproduced the boundary surveyed on SR128/1945 furthest
from the HWM
so that the promenade does not encroach on the applicant’s
property.
19
This does not
assist the applicant who attached it to the affidavit of Mr Dinkele.
However, Mr Burwood places the HWM set in SR1565/1975
on the seaward
side of the HWM set in SR 128/1945. Juxtaposing SR 1565/1975 with
SR128/1945 shows that the HWM has shifted significantly
towards the
ocean. In all the circumstances, Mr Hoffman’s persistence that
the HWM set in SR128/1945 must prevail is therefore
unjustified.
Turning to the
authorities, both sides relied on the same case law as to whether
the property was
ager
limitatus
or not.
According to the authorities
20
an
ager
limitatus
is a plot of
land enclosed on all sides by artificial boundaries and demarcated
by such. An
ager non
limitatus
is a plot
bounded on one or more sides by some natural feature such as a river
or, as in this case, the seashore. Irrespective
of the sort of
boundaries it has, a plot defined by measurement is also
ager
limitatus
or, if not one
in the pure sense, then is regarded as such for all practical
purposes.
21
Simpson and Sweeny
22
elaborate:
‘“
Ager
Limitatus
”
means,
literally, “fixed field” and in Roman-Dutch law
beaconed land rectilinearly bounded is
ager
limitatus
and,
abutting a river or sea, there can be no extension of this land
area to midstream nor is the owner entitled to alluvion.
On the
other hand land bounded curvilinearly by a river or the sea is
normally “
ager
non-limitatus
”
which
in Roman-Dutch law is entitled to alluvion and by a principle of
English law adopted in South Africa there is a rebuttable
presumption that the land so bounded in relation to a river extends
to midstream. In respect of the above there is no doubt:
not unless
a piece of land has a boundary relating to a river or the sea and
in addition there are certain features relating
to the numerical
data, inclusive of the area, that appear in the title deed or
diagram. When these features are present it
seems that the land is
ager
limitatus
or
fixed and it is not entitled to alluvion nor can the piece of land
be extended to midstream even though it is curvilinearly
bounded by
water.’
23
The learned Didcott J observed that
every plot is confined to its own limits therefore this is not a
distinctive characteristic
of
agri
limitati.
Nevertheless,
the limits of an
ager
limitatus
plot are easier
to identify even though locating them on the ground might sometimes
prove difficult. Determining the boundaries
of
agri
non limitati
plots is
harder because natural boundaries such as the seashore are not
static. Instrumental to determining whether a plot is
ager
limitatus
are the title
deed and drawings that define the plot.
24
Innes CJ in
Van
Niekerk and Union Government (Minister of Lands) v Carter
1917 AD 359
reminds that in Roman
Dutch Law, which recognises the distinction between natural and
artificially bounded riparian properties,
land granted by
measurement and not in lump was
ager
limitatus
. Measurement had
to be the dominant feature of the grant.
25
The learned judge concluded:
‘
The
whole matter is rather obscure, but I think it may be said that if
a riparian property was not an
ager
limitatus
,
the law of Holland did not prohibit a recognition of the right of
its owner to alluvion and to the bed of the stream without
prejudice, of course, to due use by the public.’
26
(sic)
Roman Law also
recognised the doctrines of
avulsio
when a piece of
land is torn off forcefully and washes up against another’s
land, and
alluvion
which
is the gradual addition to land resulting in the owner acquiring the
land through alluvion or accession.
27
Accession causes
boundaries to move with the variable HWM of the sea.
28
From the authorities I deduce that
measurements and natural boundaries are not mutually exclusive
factors that go to determining
the size and position of land. If the
title deed and drawing alone can fix the extent and position of the
land, then it is
ager limitatus
. Determining the extent is
not enough if the position of the land cannot be located. If the
natural boundary determines the extent
or position of the land, then
it is
ager non limitatus
. Consequently, the extent of the
land could also increase or decrease by
alluvion, avulsion
or
by virtue of having a fluid curvilinear boundary.
Applying this
deduction to the facts in this case, I find that title deed
1152/1947, sectional plan SG657/1996 and sectional title
deed
T5225/1996 defined the property by measurement by giving the length
and angles of all its co-ordinates. However, measurement
is not the
only defining feature of the property. The title deed, diagram and
general plan for Dolphin Cove fixed the eastern
boundary as 12.19
metres from the HWM. Furthermore, a condition of the title deed is
that Dolphin Cove
29
is transferred
with the benefit of the use of the right of way 12.19 metres wide
along the HWM. However, the seaward side of the
property is a
curvilinear boundary defined by the HWM. As the HWM is a fluctuating
natural phenomenon, the position of the eastern
boundary must also
fluctuate. Naturally, if the boundary has changed the extent of the
property would also have changed. The
mere fact that all the parties
and the surveyor general agree that the seaward boundary can only be
positioned once the HWM is
re-established fortifies my view that the
property is
ager
non limitatus
.
Because the municipality erected the
promenade, it bears the onus of proving that it acted lawfully. That
includes proving that
its construction does not trench on the rights
of property owners. No one can build anything anywhere he likes and
place a burden
on the owner to prove her ownership of the property.
The applicant did not consent to the construction of the promenade.
The
members of the applicant have a real and constitutionally
protected right to property. The municipality bears the onus of
proving
that it has a right or duty to construct the promenade, to
do so in the position that it has and that its right or duty trumps
the property rights of the Dolphin Cove property owners.
On the municipality’s own
version, it cannot prove that the construction is not on land owned
or managed by the applicant.
On the contrary, Mr Hoffman’s
drawing and drawings approved by the surveyor general suggest that
if survey SR76/1941 applies,
the promenade encroaches partially. If
survey diagram SR1565/1975 applies, then the entire promenade
encroaches on Dolphin Cove.
As the municipality does not know where
the seaward boundary is and cannot say conclusively whether there is
or is not an encroachment,
it fails to discharge its onus.
Even if I were to accept Ms Gabriel
SC’s submission for the municipality that the applicant is
bound by the extent of the
property as reflected in its title deed,
the municipality must, as Mr Salmon SC submitted, measure the
property to locate its
exact position. Knowing the size of the
property is not enough; its exact location must also be known to
determine its boundaries
to establish whether there is an
encroachment. I accordingly find that the promenade the municipality
constructed encroaches
on Dolphin Cove. This finding prevails until
a resurvey of the HWM proves otherwise.
Does the construction of the
promenade comply with NEMA?
Following the
storm damage of March 2007, the municipality applied to the
department to construct a continuous walkway to replace
the one
washed away in the storm. The department granted authorisation on 30
September 2008. However, the authorisation did not
include approval
for the promenade in front of Dolphin Cove because the
municipality’s own expert, Mr Bundy had recommended
an
elevated promenade and not one fixed on a rock.
30
The municipality
submitted an amended application on 19 May 2009 to authorise it to
construct a continuous promenade between Library
Way and Emberton.
As this amended application was for a board and chain promenade
situated leeward of the frontal dune at beach
level, it still did
not meet Mr Bundy’s recommendation for an elevated promenade.
Nevertheless, the department approved
this, the first amended
application, on 24 July 2009 on the basis that it was a
non-substantive amendment that did not affect
the environmental
rights of interested parties.
31
The proposed board
and chain structure had to comply substantively with the drawing
attached to the authorisation. The proposed
route had to comply
substantially with the plan attached to the authorisation.
Importantly, the authorisation prohibited the
board and chain
structure from hindering the beach morphodynamics.
32
Unsurprisingly, Mr
Bundy once again refused to support a ground level boardwalk because
it impacted adversely on the environment.
33
The first amended
authorisation was accordingly abandoned.
On 14 August 2009,
the municipality applied for a second amendment in order to change
the position of the promenade.
34
The second
amendment was for a wooden walkway elevated 100 millimetres from the
ground so that it impacts minimally on the dune
system. However, the
route differs from that approved in the first amended authorisation.
Mr Bundy, who applied for the second
amendment represented that the
affected bodies corporate had endorsed the routing according to the
Bohlweki SSI application.
35
Construction of
this walkway commenced about 3 September 2009
36
and was completed
within a week after the applicant allegedly approved in principle.
However, on 26 October 2009, the department
issued a pre-directive
to the municipality resulting in the municipality abandoning the
second amendment.
37
On 4 March 2010, the department
informed the municipality that as the promenade had been constructed
in breach of the environmental
assessment conditions, s 24G did not
apply. In an apparent contradiction to this information the
department asked the municipality
for its s 24G application on 26
October 2010, after the municipality delivered its answering
affidavits in this application.
The municipality complied. The
department rejected the application on 24 March 2011 and called for
a fresh submission supported
with a coastal management report. At a
meeting on 28 March 2011 the department reiterated its request for a
special report from
Mr Bundy.
Mr Bundy complied
in April 2011 by requesting condonation of the boardwalk as
presently constructed because of the significant
social and economic
benefits from tourism. However, Mr Bundy’s report is
qualified. In addition to preferring the position
the promenade to
be further leeward,
38
he cautioned that
in the long term the bay will most likely have to be defended. And,
if defences are established within the bay
the beach will continue
to deflate.
39
More than eight months have passed
and the department’s response to the application for
condonation of the presently constructed
promenade is still awaited.
It has not acted in any way against the municipality,
notwithstanding its powers of instituting criminal
prosecution or
imposing administrative fines for offences committed under s 24F of
NEMA.
It is clear from the above that
without authorisation or condonation for the construction of the
promenade, the municipality has
committed an offence in terms of s
24F. Hence its application for rectification of its unlawful
commencement of activity in terms
of s 24G.
Government notice
R386 promulgated under s 24(2) (a) and (d) of NEMA authorises a
listing of activities which may not commence
without environmental
authorisation from the competent authority;
40
furthermore,
investigation, assessment and communication of the potential impact
of such activities must follow the prescribed
procedure.
41
Included on that
list are
Construction or earth moving
activities in the sea or within 100 metres inland of the high water
mark in respect of fixed or floating
jetties or slipways,
embankments, stabilising walls, buildings or infrastructure; and
The prevention of free movement of
sand including erosion and accretion, by means of planting
vegetation, placing synthetic material
on dunes and exposed sand
surfaces within a distance of 100 metres inland of the HWM of the
sea.
The competent authority as defined in
s 1 of NEMA is the Member of the Executive Counsel (MEC). To rectify
its unlawful commencement
of activities the municipality has to
apply to the MEC who may then direct the municipality to compile a
report containing
an assessment of the impact of the
activity of the environment;
mitigating measures undertaken;
public participation in compiling the
report and how issues raised have been addressed;
an environmental management
programme.
After considering the report and any
further information, the MEC may
direct the municipality to cease the
activity either wholly or in part and rehabilitate the environment
on certain conditions;
or
issue and environmental authorisation
subject to conditions.
However, before
the MEC takes either of these steps, the municipality must pay an
administrative fine not exceeding one million
rand which the MEC
must set. In this case, the MEC has not set such a fine. In fact,
the MEC and the department have not responded
at all either to the s
24G application or to this litigation,
42
notwithstanding Mr
Bundy’s concerns about the damage the promenade may be causing
to the environment. The MEC is not cited
in these proceedings as he
or she should have been; however the municipality makes no issue of
this.
It is a defence to a charge of
commencing a listed activity without authorisation to show that the
activity commenced or continued
in response to an emergency in order
to protect human life, property or the environment. In this case,
the municipality’s
reason for constructing the promenade
without authorisation is public pressure for such a facility. The
building of the promenade
is therefore not a response to an
emergency. Furthermore, the municipality risked acting irrationally
by allowing itself to submit
to public pressure. Public pressure and
tourism are not compelling reasons to excuse the municipality’s
conduct. Public
pressure can hardly ever be a basis for commencing
or continuing a listed activity unlawfully. Nor can the
socio-economic benefits
of tourism. The environment, if damaged
irreversibly will be lost forever. Consequently, the municipality’s
reasons for
constructing the promenade is neither a defence
contemplated in s 24F (3) of NEMA nor a justifiable ground for
breaking the law.
Section 24G is not an invitation to
commit offences so that they can be corrected later. The seriousness
of a s 24F offence is
self-evident from the heavy penalties it
attracts. A fine not exceeding five million rand or imprisonment not
exceeding ten years,
or both such fine and imprisonment may be
imposed.
A general
principle of NEMA is that environmental management must take into
account the effects of decisions on all aspects of
the environment
and all people in the environment by pursuing the selection of the
best practicable and environmental options.
43
Furthermore,
environmental justice requires that adverse environmental impact
should not be allowed to unfairly discriminate against
any person.
44
Decisions must
take into account the interests, needs and values of all interested
and affected parties.
45
They must be taken
in an open and transparent manner and access to information must be
provided in accordance with the law.
46
Furthermore, there
must be intergovernmental coordination and harmonisation of
policies, legislation and actions relating to the
environment.
47
Conflicts of
interest between organs of state should be resolved through conflict
resolution procedures.
48
The principles
identify coastal shores as one of the sensitive, vulnerable, highly
dynamic or stressed ecosystems that requires
specific attention in
management and planning procedures.
49
Co-ordination,
harmonisation and cooperative government are therefore consistent
themes of NEMA.
50
The municipality
was aware before it constructed the promenade that the department
had to authorise its construction. It had to
know also that it was
committing an offence by constructing the promenade without
authorisation. The ‘in principle’
agreement to construct
the promenade, if it was secured, appears to have been obtained from
some members of the applicant in
the absence of their attorney and
in exchange for relaxing the position of the promenade
substantially.
51
The municipality
was aware that the applicant was legally represented. However, it
surreptitiously sought to secure an oral agreement
about a much
disputed real right in circumstances that are suspiciously informal.
As an organ of state and the third tier of
government, it is
shocking that it disregards not only the law and the rights of
individual property owners but also the advice
of its own expert Mr
Bundy.
The s 24G process is merely an
application which may secure authorisation after the fact. It may
also result in the municipality
being directed to cease the activity
by removing the promenade. It is not for this court to anticipate
what the outcome of the
s 24G application would be. However, the
fact that currently, the promenade encroaches on private property
must be a material
consideration, not least because the right to
property is constitutionally protected. The encroachment raises the
spectre of
expropriation which in turn has financial implications.
Whether the construction of the promenade justifies the costs of
expropriating
private property is a matter for the MEC’s
decision. However, neither the s 24G application nor Mr Bundy’s
report
mention the encroachment and the unhappiness of the property
owners. Unsurprisingly, in this application Mr Hoffman also
downplays
the encroachment. As soon as the encroachment is
acknowledged then the municipality has to speak the language of
compensation
and expropriation, which it avoids doing because of the
financial implications.
However, the s 24G application has
nothing to do with the applicant and the property owners it
represents. They are not party
to it nor do they support it. It
affects them only if it is granted. In the absence of an emergency
to protect human life, property
or the environment, the municipality
had no right or duty whatsoever to trench upon their property
rights.
The municipality
persists that they engaged in extensive public participation before
constructing the promenade and when applying
for authorisation. It
maintains that the department was satisfied that there had been
sufficient consultation and public participation.
The applicant
denies that it was consulted about constructing the promenade and
maintains that it was not aware that the consultations
that did
occur were part of the process of applying for authorisation. The
applicant understood that it was participating in
the process of
obtaining authorisation from the department for the beach and dune
restoration.
52
Whether there was consultation
sufficient to meet the requirements of NEMA is a dispute which I
cannot resolve on the papers.
However, it is not necessary for me
but for the MEC considering the s 24G application to resolve. For
the purpose of determining
this application, it is common cause that
the applicant did not consent to the encroachment.
The promenade is unlawful not only
because it encroaches on property of private owners but also because
its construction is an
offence and the department has not authorised
it.
Does the promenade adversely impact
on the environment?
As for the
applicant’s third ground, namely that the construction of the
promenade has long term adverse impact on the environment,
Mr Bundy
in his April 2011 report submitted in support of the s 24G
application confirms that while there may be ‘
some
significant short-term social benefits as espoused by political and
public bodies’
53
he opined that
‘
(t)he
long term natural processes are however, compromised by the
development of an additional structure in close proximity to
the
beach’
.
54
The promenade
provides access to the beaches. As a tourist attraction, it
contributes to the local economy. However, as presently
constructed
it will destabilise dunes for the following reasons:
the construction disturbs the dune
lamellae and compromises the integrity of the dunes;
the structure adds weight to the
dunes;
the structure alters the surface
water run off and the aeolian movement on and around the dunes
the structure
alters the latent ecological processes associated with the dunes.
55
In the
circumstances, whilst there are short to medium term positive
socio-economic implications of the promenade, the biophysical
implications are negative. In Mr Bundy’s opinion, the negative
impact is ‘relatively high’.
56
Notwithstanding
his opinion as to the long term impact of the promenade, Mr Bundy
suggested as a way forward that the construction
be condoned.
However, when asking for the condonation, he points out that a more
stable option would be to route the promenade
further leeward but
that would result in encroachment onto private properties resulting
in negotiations with private owners.
He also points out that the
route and structure has a limited lifespan of about ten years before
defence of the beach front or
further retreat will have to be
undertaken. He urges the municipality to monitor and evaluate the
coastal processes and cautions
residential owners of the effect of
their structures on the supra tidal coastal dynamic; in time the
local authority and residential
owners might have to take protective
and mitigating measures.
57
With the further erosion of the
frontal dune that Mr Bundy anticipates, the applicant’s
building is at risk for as long
as the unauthorised promenade
remains.
Costs
On 24 November 2009, the applicant
demanded that the municipality remove the promenade immediately. Mr
Mendez persisted that the
promenade had been authorised and that it
was outside the Dolphin Cove boundary. On 15 December 2009, the
applicant extended
its deadline to 15 January 2010 for the
municipality to remove the promenade. On 23 August 2012, the
applicant launched this
application.
The applicant became aware for the
first time of the municipality’s application to the department
for a further amendment
to the first authorisation when it received
a letter dated 26 October 2009 addressed to the municipality from
the department.
That letter recorded that the dune and promenade
works were unauthorised and that the municipality should bring an
application
in terms of s 24G of NEMA. The municipality complied
only in April 2011, more than 7 months after this litigation
commenced.
The municipality is in flagrant
violation of NEMA, the property owner’s rights to a safe
environment and their rights to
their property. It refused to accept
the advice of its own environmental expert, Mr Bundy on three
occasions.
The applicant seeks costs on an
attorney and client scale. To decide many of the issues in dispute
e.g. whether Mr Mendez bullied
the members of the applicant, oral
evidence is required. Consequently, I make no findings about the
disputed issues. However,
given the municipality’s flagrant,
repeated and continuing breach of the law and most importantly, the
risk its promenade
poses for the environment, an adverse cost order
is justified. Once damaged, restoring the environment might be
impossible. An
order for costs against the municipality is
ultimately satisfied from public coffers. Instead, the persons
responsible for this
mismanagement of the environment and
squandering of public funds to defend criminal conduct should be
held accountable.
Order
The first respondent municipality is
ordered at its own cost:
to permanently remove the hardened
promenade, along the dunes between Clarke Bay and Emberton, Balito,
Kwazulu-Natal;
to make good the damage caused to
Dolphin Cove in the construction of the promenade; and
to relocate the fence to its original
location on the boundary of Dolphin Cove;
within fourteen (14) days of the date
of service of this order.
[59] The applicant shall serve a copy
of this judgment on
the auditor-general to investigate
whether the cost of this litigation amounts to the sort of
irregular, fruitless and wasteful
expenditure that is disallowed in
terms of Chapter 15 of the Municipal Finance Management Act 56 of
2003 and to act accordingly;
the state attorney on behalf of the
Kwazulu-Natal Department of Agriculture, Environmental Affairs and
Rural Development;
[60] The second respondent
municipality shall pay the applicant body corporate’s costs as
between attorney and client
________________
D. Pillay J
Appearances
For the Applicant: Adv Salmon SC
Instructed by: Norman Brautenseth &
Associates
4 Caefron Avenue
Westville
Tel: 031 266 9300
For the Respondent: Adv Gabriel SC
Instructed by: Shepstone & Wylie
Scotswood
35 Samora Machel Street
Durban
1
S1
2
55
3
Annexure
B 39;
s 44
of the
Deeds Registries Act 47 of 1937
4
See
for example
sections 23
,
24
,
29
,
31
,
32
,
33
,
36
and
37
of the LSA
5
Mendez
189 para 25
6
Hoffman:
596 para 14
7
Hoffman:
599 para 26 - 27
8
Mendez
187 para 16
9
Hoffman’s
report 607 – 608 read with SG 4928/1975 at 653 and 541
10
Dinkele
553 - 4
11
Dinkele
554 para 5
12
Pg
653 and 541
13
Pg
570 and 720
14
Ouderkraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA222 SCA
15
S
1
of LSA
16
674
– 657
17
673-4
18
605
19
JMD
4 566
20
Cited
in
Durban City Council
v
Minister of Agriculture
1982 (2) D&CLD
361 @369C
21
This
is the approach of Didcott J in
Durban
City Council v Minister of Agriculture
1982
(2) D and CLD 369 C-D.
22
In
the
Land
Surveyor and the Law
173
23
Simpson
and Sweeny 433
24
Durban
City Council
370 A
25
V
an
Niekerk
375
26
Van
Niekerk
376
27
Jan
Glazewski
Environmental Law in South
Africa
, Butterworths 2000 350
28
Simpson
and Sweeny 135 at 815
29
Section
11
(3) (b) Schedule of the STA para 4 d 41; title deed 1152/1947
para 4 d 53
30
A
letter Plomp 765 para G; Mendez 187; Annexure AP1 295 para
31
Mendez
Annexure AP1 293 para 3 (a) ; 294
32
Mendez
Annexure AP1 294 para 4
33
A
letter Plomp 766 para K
34
Mendez
Annexure AP1 appendix E 320
35
322
36
Issues
Trail Report pg 330
37
Plomp
767
38
Plomp
AP3 805
39
The
Bundy Report 805
40
S24(2)
(a) of NEMA
41
Government
Notice R 386 21 April 2006
42
S24G(2)
and
2A
of NEMA
43
S2(4)
(b) of NEMA
44
S2(4)
(c)
45
">
45
S
2
(4) (g)
46
">
46
S
2
(4) (k)
47
">
47
S
2
(4) (l)
48
">
48
S
2
(4) (m)
49
">
49
S
2
(4) (r)
50
For
example
s 11
and
12
51
">
51
ISS
trial 335
52
King
14 para 21
53
Bundy
796 para 3
54
Bundy
79**
55
Bundy
801 para 3
56
Bundy
803
57
Bundy
805 – 806