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[2020] ZASCA 9
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KwaDukuza Municipality v Lahaf (Pty) Ltd (940/18) [2020] ZASCA 9; [2020] 2 All SA 356 (SCA) (18 March 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 940/18
In
the matter between:
KWADUKUZA
MUNICIPALITY
APPELLANT
and
LAHAF (PTY)
LTD
RESPONDENT
Neutral
Citation:
KwaDukuza
Municipality v Lahaf (Pty) Ltd
(840/18)
[2020] ZASCA 09
(18 March 2020)
Coram:
PETSE DP and LEACH, ZONDI, PLASKET
and MBATHA JJA
Heard:
12 November 2019
Delivered:
18 March 2020
Summary:
Interpretation of a
town planning scheme which applies exclusively to Lifestyle Centre,
Ballito – meaning of the phrase 'the
total gross lettable area
(GLA) of the Property' – starting point is the language of the
zoning provision which must be construed
in the light of its context,
the apparent purpose to which it is directed and material known to
those responsible for its production.
ORDER
On
appeal from
: The
KwaZulu-Natal Division of the High Court, Pietermaritzburg (Chili J
sitting as court of first instance):
1 The appeal is upheld
with costs.
2 The order of the court
below is set aside and replaced with the following order:
‘
The
application is dismissed with costs.’
JUDGMENT
Zondi
JA (Petse DP concurring):
[1]
This appeal concerns the interpretation of the words ‘the total
Gross Lettable Area (GLA) of the Property’, in a
single zone in
a town planning scheme which applies exclusively to the Lifestyle
Centre (Centre) in Ballito, KwaZulu Natal. The
scheme was approved by
the appellant, KwaDukuza Municipality, in 2000. The scheme controls
limit the permissible GLA for the Lifestyle
Centre in terms of
maximum square metres on the property. The precise meaning of GLA
determines the nature and extent of what can
lawfully be built at the
Lifestyle Centre. The dispute is whether the third restriction in
Table D : Density Zone of the current
zoning (approved in November
2011), which refers to ‘the total GLA of the property’,
should be interpreted to mean
only the area of ‘shops’ as
defined in the scheme clauses or all areas capable of being leased.
[2]
The respondent, Lahaf (Pty) Ltd, contended that the word 'GLA' must
be interpreted to mean only the area of 'shops' as defined
in the
scheme clauses, that is to say, the areas let out by the respondent
to be used as shops and all areas used exclusively by
a shop tenant.
On the other hand, the appellant contended that 'GLA' comprises all
areas notionally capable of being let including
storage areas and
receiving yards. In other words, it draws no distinction between shop
and non-shop areas.
[3]
The dispute arose in those circumstances. The respondent and two of
its tenants submitted to the appellant building plans for
approval
but, because of the disagreement regarding the meaning to be ascribed
to 'GLA' the appellant had not considered the relevant
plans. The
apparent basis for the appellant’s stance was its contention
that what the respondent had built and proposes building
at the
Lifestyle Centre contravenes the limitations imposed on the property
in terms of its zoning controls. The respondent’s
position was
that what it had built complies with applicable zoning provisions and
scheme controls and what it intended to build
complied or was capable
of compliance. In short, the parties are in dispute as to which built
areas in the centre constitute GLA
and which areas do not.
[4] As a result of the
disagreement, the respondent, on 27 March 2015, approached the
Kwa-Zulu Natal Division of the High Court,
Pietermaritzburg (the high
court) seeking an order that:
1
It is declared that the term 'GLA' in the zoning
controls of Ballito Town Planning Scheme for Special Zone 10:
Lifestyle Centre:
1.1
means ‘gross leasable area’ and relates only to the
relevant retail space for the exclusive use of retail shop tenants;
1.2
excludes uses other than ‘shop’ as defined in the scheme,
and other uses as set out in sub-paras 1.2.1 to 1.2.12;
1.3
is measured according to the formula in the South African Property
Owners’ Association Guide, namely to the centre line
of
demising walls, to the inside finished surface of external walls and
to the centre line of the shop front boundary;
1.4
The respondent sought an order directing the appellant to consider
the three sets of the building plans submitted by respondent
in the
light of the declared definition of the GLA within 60 days of the
order; it further sought an order that the appellant be
ordered to
consider all other building plans submitted to it by the respondent
or its tenants in the light of the definition of
GLA also within 60
days of the order.
[5]
The high court (Chili J) accepted the respondent’s contention
and granted a declaratory order to that effect. It, among
others,
directed the appellant to consider the relevant building plans
submitted to it by the respondent or its tenants in accordance
with
the declared definition of 'GLA'. The appellant’s appeal, with
leave of this court, is directed at the conclusions and
findings on
which the order of the high court is based.
[6]
The interpretation of the relevant provision of the zoning control
should be considered in the context of these facts. The Ballito
Lifestyle Centre (Centre) is situated on erven 3671 and 2348
Ballitoville (the property). The respondent is the registered owner
of erf 3671 which it acquired from Paul & Bruce Investments (Pty)
Ltd during July 2009. The Centre is situated within KwaDukuza
Municipality area and falls under the Ballito Town Planning Scheme.
[7] The individual erven
on which the Lifestyle Centre has been built were all originally part
of the Ballito Business Park and
zoned variously ‘Activity’,
‘Agricultural’ and ‘Public Open Space’. The
controls which applied
to the erven zoned ‘Activity’
prescribed the maximum floor area ratio (FAR) at 1, coverage of 70%
and set a height
limitation of 3 storeys. (Paragraph 25). In terms of
the zoning provisions shops were permitted on ‘Activity’
erven
by special consent, but limited to 200 m². This limitation
had been removed in respect of some of the original erven forming
part of the Lifestyle Centre which had been zoned ‘Activity’,
but not others.
The creation of
Special Zone 10: Lifestyle Centre.
[8]
In approximately 2000 the previous owners of the property, Seaward
Estates, submitted an application to the appellant to rezone
components of the property to create Special Zone 10: Lifestyle
Centre. This was achieved by rezoning approximately 4.7 hectares
of
agricultural land to Activity and by converting the Activity into the
Lifestyle Centre. It was envisaged that the Special Zone
would apply
to the Lifestyle Centre. The Lifestyle Centre was to be different
from a conventional shopping centre. It was to include
lifestyle
components, such as restaurants, a nursery, large open walkways and
water features alongside conventional retail outlets
and service
providers such as the Post Office and Banks. In the rezoning
application the Lifestyle Centre was described as ‘a
holistic
complex of shops, restaurants and entertainment facilities which
have, in addition to conventional shops, a focus on the
outdoor
living and a plant nursery together with recreational and
entertainment uses such as an animal farm, gymnasium/health centres,
open air tea gardens and extensive landscaping’.
[9]
It was further stated in the application that the purpose of the
rezoning application was the creation of a larger single site
to
accommodate a more holistic shopping/Lifestyle Centre Complex, which
could not be developed over the 12 individual erven as
they existed.
[10]
The rezoning application proposed certain scheme controls which would
apply to the Lifestyle Centre zone. These introduced
the term ‘GLA’
but unfortunately ‘GLA’ was not defined in the scheme and
is still not defined.
[11] The rezoning
application was granted and ‘Special Zone 10: Lifestyle Centre’
was established with its own zoning
controls as set out in the
following table:
TABLE C : USE ZONE :
ACTIVITY ZONE
USE ZONE
(1)
NOTATION
(2)
PURPOSES FOR WHICH
BUILDINGS MAY BE ERECTED AND USED
(3)
PURPOSES FOR WHICH
BUILDINGS MAY BE ERECTED AND USED ONLY WITH SPECIAL CONSENT
(4)
PURPOSES FOR WHICH
BUILDINGS MAY NOT BE ERECTED AND USED
(5)
Special Zone 10
Life Style Centre
Agriculture
Arcade or
Pedestrian Mall
Arts and Crafts
Workshop
Commercial Workshop
Educational
Building
Laundrette
Office Building
Place of Public
Amusement
Place of Public
Assembly
Private Recreation
Area
Recreational
Building
Restaurant
Shop (restricted to
14000m2gla)
Crèche
Dwelling House
Funeral Parlour
Motor Car Showroom
Municipal
Parking Garage
Public Office
Residential
Building
Service Industrial
Building and land
uses not included in Columns 3 and 4
TABLE D : DENSITY ZONE
DENSITY ZONE
(1)
MAXIMUM PERMITTED
F.A.R., COVERAGE AND HEIGHT
(2)
ADDITIONAL CONTROLS
(3)
COLOUR NOTATION ON
SCHEME MAP
(4)
Special Zone 10
Life Style Centre
1:70:3
1. Accommodation of
motor vehicles to be provided on the lot as per Clause 6.4
2. Subject to the
provision of a sewage disposal system to the satisfaction of the
Local Authority
3. Total floorspace
shall not exceed 25000m2gla
[12] As the above
schedules demonstrate the adopted scheme controls comprised Table C
and Table D. Table C dealt with permitted
use of space and Table D
dealt with density controls. (This you would find at page 87 of the
record). In terms of Table C a maximum
of 14 000 m
2
of
GLA could be used for shops. In terms of Table D the permitted GLA
for total floor space was 25 000 m
2
.
The second amendment
to the zoning.
[13] Again during July
2005 the former owners of the property submitted an application
pursuant to s 47 of the Town Planning
Ordinance, 27 of 1949 to
amend the scheme controls applicable to Special Zone 10 so as to
increase the maximum permitted GLA allowed
for shops from 14 000
m² to 25 000 m² and remove the restriction on total
floor space of 25 000 m²
GLA in Table D. This application
was granted on 17 October 2005 (p 95).The Council of the appellant
resolved that the application
for the proposed scheme amendment be
approved as follows:
'1.
PROPOSED REZONING OF ERVEN 2334, 2335 and 2336 BALLITOVILLE, DOUGLAS
CROWE PLACE, BALLITO BUSINESS PARK FROM "ACTIVITY
ZONE" TO
"SPECIAL ZONE '10' LIFESTYLE CENTRE" PURPOSES; AND
2.
PROPOSED AMENDMENT TO "TABLE D : DENSITY CONTROLS" AS
APPLICABLE TO THE "SPECIAL ZONE 10' LIFESTYLE CENTRE"
BY
INCREASING THE 'GROSS LEASEABLE AREA (GLA)" IN RESPECT OF "SHOP"
TO 25 000 SQUARE METERS AND BY DELETING
"ADDITIONAL CONTROL
3" WHICH LIMITS THE TOTAL FLOOR SPACE TO 25 000 SQUARE
METRES GLA.'
As a result of the
amendment Table C and Table D were amended in the following manner:
TABLE C : USE ZONE :
SPECIAL ZONE 10 : LIFESTYLE CENTRE
Use Zone
(1)
Notation on scheme
map
(2)
Purposes for which
buildings may be erected and used
(3)
Purposes for which
buildings may be erected and used only with special consent
(4)
Purposes for which
buildings may NOT be erected and used
(5)
Special Zone 10
Lifestyle Centre
Red Cross Hatch
Agriculture
Arcade or
Pedestrian Mall
Arts & Crafts
Workshop
Commercial Workshop
Educational
Building
Laundrette
Office Building
Place of Public
Amusement
Private Recreation
Area
Recreational
building
Restaurant
Shop
Restricted to
25000m2 GLA
Building and land
uses NOT included in Columns 3 and 4
TABLE D : DENSITY ZONE:
SPECIAL ZONE 10: LIFESTYLE CENTRE
Density Zone
(1)
Maximum permitted
F.A.R., Coverage and height
(2)
Additional Controls
(3)
Colour notation on
scheme map
(4)
Special Zone 10
Life Style Centre
1:70:3
1. Accommodation of
motor vehicles to be provided on the lot as per Clause 6.4
2. Subject to the
provision of a sewage disposal System to the satisfaction of the
Local Authority
3. Total Floor
Space be restricted to 25000m2
It is apparent from Table
D that, as from 17 October 2005, a reference to GLA in para 3 in the
third column was omitted following
the amendment.
The third amendment to
the zoning.
[14] During October 2007,
the respondent submitted a further application to amend scheme
controls applicable to Special Zone 10:
Lifestyle Centre to increase
the total floor space from 25 000m² to 28 000m². At the
time the respondent sought an additional
space to enable it to
construct a gym and lease that area to Virgin Active Gym. The Virgin
Active Gym did not constitute a shop
in terms of the scheme clauses.
On 4 June 2008 the executive committee of the appellant resolved to
increase the permitted GLA
from 25 000m² to 28 000m².
But for some other reason, the appellant erroneously amended the
scheme controls by increasing
GLA rather than the floor area. This
error was, however, subsequently rectified by the municipal officials
on 3 September 2008
to reflect that what was increased was the total
floor area from 25 000m² to 28 000m² not GLA.
Again a reference
to GLA in Column 3, para 3 of Table D was omitted.
The result of the amendment was that Tables C and D were amended as
follows:
TABLE C : USE ZONE :
SPECIAL ZONE 10 : LIFESTYLE CENTRE
Use Zone
(1)
Notation on scheme
map
(2)
Purposes for which
buildings may be erected and used
(3)
Purposes for which
buildings may be erected and used only with special consent
(4)
Purposes for which
buildings may NOT be erected and used
(5)
Special Zone 10
Lifestyle Centre
Red Cross Hatch
Agriculture
Arcade or
Pedestrian Mall
Arts & Crafts
Workshop
Commercial Workshop
Educational
Building
Laundrette
Office Building
Place of Public
Amusement
Private Recreation
Area
Recreational
building
Restaurant
Shop
Restricted to
25000m2 GLA
Building and land
uses NOT included in Columns 3 and 4
TABLE D : DENSITY ZONE:
SPECIAL ZONE 10: LIFESTYLE CENTRE
Density Zone
(1)
Maximum permitted
F.A.R., Coverage and height
(2)
Additional Controls
(3)
Colour notation on
scheme map
(4)
Special Zone 10
Life Style Centre
1:70:3
1. Accommodation of
motor vehicles to be provided on the lot as per Clause 6.4
2. Subject to the
provision of a sewage disposal System to the satisfaction of the
Local Authority
3. Total Floor
Space be restricted to 28000m2
The fourth amendment
to the zoning.
[15]
During June 2011, the respondent applied for a further amendment of
the zoning controls. The respondent sought to delete the
restriction
(restricted to 25 000
m
2
GLA) in Table C in so far as it
applied to the total shop GLA and remove condition 3 in Table D
limiting total floor space (total
floor space restricted to 28 000
m
2
).
In para 3.3 of the application the respondent explained the purposes
of the amendment:
'The
proposed amendments referred to in paragraph 3.1 above, therefore
entails the deletion of the current "Shop" and
"Total
Floor Space" restriction, as tabulated in paragraph 3.2 above.
The density parameters will then simply be applied
conventionally,
being the maximum permitted F.A.R., Coverage and Height, as tabulated
in "Table D: Density Zone: Column 2
of Special Zone 10:
Lifestyle Centre", being 1 : 70 and 3 respectively.'
[16]
On 19 October 2011, Mr FG van der Merwe, a Registered Planner,
prepared a valuation report on behalf of the appellant. According
to
Van der Merwe the purpose of the application was ‘to seek
Council’s consideration for an application brought in
terms of
the Act, for the removal of a restriction. The ultimate purpose being
to amend the current “Table C : Use Zone and
Table D: Density
Zone” as they apply to the “Special Zone 10: Lifestyle
Centre”, to . . . permit
an increase in the
Gross Leasable Area (GLA) applicable to the Property…’
[17] Under the heading
‘Evaluation’ Van der Merwe set out the following
background:
'Evaluation
During
July 2005, an application was submitted by Paul & Bruce
Investments (Pty) Ltd to rezone certain components of the
[applicant’s]
Property to "Special Zone 10 : Lifestyle
Centre" purposes, as well as to increase the maximum permitted
G.L.A. (gross
leasable area) of "shop" from 14000m
2
to
25000m
2
.
The said application further proposed
the deletion of the total floor space requirement of 25000m
2
G.L.A. The above application was approved by the Municipality
and subsequently became the subject of an appeal in terms of Section
47 bis C of the Town Planning Ordinance (Ordinance No. 27 of 1949).
The Provincial Planning and Development Commission subsequently
resolved to dismiss the appeal brought by the appellants, thereby
giving effect to the KwaDukuza Council decision, with
amended
controls in Table C and Table D.
As
mentioned above, the previous application submitted by Paul &
Bruce Investments (Pty) Ltd was (apart from rezoning certain
components of the application property) to increase the maximum
G.L.A. for "shop" from 14000m
2
to 25000m
2
as well as to delete . . . the total floor space requirement of
25000m
2
G.L.A. The restriction placed on the maximum
G.L.A. for "shop" has, since the introduction of the
"Special Zone
10 : Lifestyle Centre" into the Ballito town
planning scheme clauses, been an additional control with specific
reference to
"shop" only.
Resulting
from the resolution taken by the Provincial Planning and Development
Commission, referred above, not only buildings erected
for "shop"
use, but the total development of the Property was restricted to
25000m
2
. During October 2007 the Applicant had to again
submit an application to amend the scheme, with specific reference to
"Special
Zone 10 : Lifestyle Centre", to increase the total
floor area from 25000m
2
to 28000m
2
. Such
application was approved during September 2008.
Generally,
the purposes for which buildings may be erected and used in "Special
Zone 10 : Lifestyle Centre",
other than "shop"
ought to be restricted by the maximum permitted F.A.R. of 1, Coverage
of 70% and Height of 3 storeys. The latter principle applies
to all
adjoining erven situated within the Ballito Business Park, zoned for
"Activity" purposes. This principle also
applied to the
Property, prior to its initial rezoning during the year 2000.
It
is the Applicant's intention to further develop the Ballito Lifestyle
Centre in the near future and therefore this application
for the
removal of the mentioned additional controls, hereby simplifying the
development controls applicable to the Property.'
[18] After setting out
how the respondent’s zoning scheme had developed over the years
and the proposed amended development
controls sought by the
respondent, Van der Merwe went on to state:
'The
concerns raised by the Objector, as well as the KZN Department of
Transport are shared, in the sense that traffic impact is
a major
consideration along the MR 398 and MR 445. The Lifestyle
Centre was not ever intended to become a conventional
centre with
conventional town planning controls and it is therefore submitted
that some form of additional control be maintained
to limit the total
G.L.A. of the Centre until such time as the larger central business
area has been re-evaluated in terms of the
Kwadukuza Scheme review
process.
It
is also important that further controls be introduced to control
future expansions to the Lifestyle Centre, in the context of
the
Department of Transport's as well as Municipality's future road and
public transport upgrading initiatives.
The
Applicant was requested to provide a detailed site development plan,
depicting the actual areas of expansion required. Attached
hereto,
marked C, is a detailed site development plan as referred to above,
which depicts the areas of extension envisaged by the
Applicant in
the short to medium term. It is submitted that consideration can be
given to logical and minor extensions to the current
G.L.A., but
limited to the current anchor tenants.
Such minor extensions
should be limited to. No more than 20% of the current G.L.A. per
anchor tenant shopping unit and aimed at
the creation of storage
space as well as a more functional shop layout
. Such extensions
should also be limited to the southern and south western parts of the
Centre, thereby not creating the opportunity
for further self
contained shopping units, resulting in a further impact on the
current access and parking situation.
Based
on the above, it is submitted that the proposed extension to
Woolworths, Spar as well as the administration unit of the Centre
be
supported. The proposed extension to Mica is substantial and not
considered appropriate in the context outlined in the paragraph
above. It is therefore recommended that consideration be given to an
additional G.L.A. of 3000m
2
only.' (My own emphasis.)
[19] After evaluating the
application Van der Merwe made the following recommendation:
'RECOMMENDATION
RESPONSIBLE OFFICIAL
1.
That based on the information provided above, as well as the
Applicant's response to the objection raised, the application in
terms of Chapter 6 [Section 65(1) thereof] of the KZN Planning &
Development Act (Act no. 6 of 2008), for the removal of restrictions
be APPROVED but subject to the following underlined amendments to
"Special Zone 10: Lifestyle Centre":
TABLE
C : USE ZONE : SPECIAL ZONE 10 : LIFESTYLE CENTRE
USE ZONE
(1)
NOTATION ON SCHEME
MAP
(2)
PURPOSES FOR WHICH
BUILDINGS MAY BE ERECTED AND USED
(3)
PURPOSES FOR WHICH
BUILDINGS MAY BE ERECTED AND USED ONLY WITH SPECIAL CONSENT
(4)
PURPOSES FOR WHICH
BUILDINGS MAY NOT BE ERECTED AND USED
(5)
Special Zone 10
Lifestyle Centre
Red Cross Hatch
Agriculture
Arcade or
Pedestrian Mall
Arts & Crafts
Workshop
Commercial Workshop
Educational
Building
Laundrette
Office Building
Place of Public
Amusement
Private Recreation
Area
Recreational
building
Restaurant
Shop
Crèche
Dwelling House
Funeral Parlor
Motor Car Showroom
Municipal
Parking Garage
Public Office
Residential
Building
Service Industrial
Building and land
uses NOT included in Columns 3 and 4
TABLE
D : DENSITY ZONE : SPECIAL ZONE : LIFESTYLE CENTRE
DENSITY ZONE
(1)
MAXIMUM PERMITTED
F.A.R., COVERAGE & HEIGHT
(2)
ADDITIONAL COTROLS
(3)
COLOUR NOTATION ON
SCHEME MAP
(4)
Special Zone 10
Lifestyle Centre
1 : 70 : 3
1. Accommodation of
motor vehicles to be provided on the lot as per Clause 6.4
2. Subject to the
provision of a sewerage disposal system to the satisfaction of the
Local authority.
3.
The
total G.L.A. of the Property be restricted to 31 000
m
2
and no development exceeding 28 000
m
2
of G.L.A. will be permitted unless prior
approval has been given by both the Municipality as well as the
KZN Provincial Department
of Transport; of a Traffic Impact
Assessment, which is to be undertaken at the cost of the owner.
That the further extensions
be limited to those areas indicated on
the plan – (ref: 0309 100/3) attached to the EDP October
2011 Agenda. The proposed
extension to the Mica shopping unit, as
shown on the said plan is not supported.
Red cross hatch
2.
That both the Applicant as well as the Objector be informed of their
rights to Appeal in terms of the provisions of the KZN Planning
&
Development Act (Act no. 6 of 2008).
3.
. . . .'
[20]
The appellant adopted Van der Merwe’s recommendation and passed
a resolution to that effect. The appellant’s decision
granting
the application to amend the scheme controls was communicated to
Helena Jacobs, the respondent’s Town and Regional
Planner, on
14 November 2011.
[21]
To sum up, the following controls applied before and after they were
amended in November 2011.Under Table C the maximum GLA
for the
building erected and used as a shop was 25 000 m
2
and in Table D
the floor space restriction of 28 000 m
2
applied. The
purpose of the application was to remove the restriction of shop GLA
of 25 000 m
2
in Table C and to
remove the floor space restriction of 28 000 m
2
in Table D. The
respondent needed additional space to extend Woolworths, Spar,
Administration Unit and Mica. The application was
considered by Van
der Merwe on behalf of the appellant. He prepared a report for the
appellant. It is significant to note that
in his report Van der Merwe
pertinently stated that the restriction placed on the maximum GLA for
‘shop’ has since
the introduction of the ‘Special
Zone 10: Lifestyle Centre’ into the Ballito town planning
scheme clauses, been an
additional control with specific reference to
‘shop’ only which confirms that the GLA has always been
associated with
‘shops’.
[22]
Mr van der Merwe suggested that logical and minor extensions to
current GLA of 25 000 m
2
be granted but by
no more than 20 percent of 25 000 m
2
.
His suggestion accordingly was that the GLA be extended by 5000 m
2
to 30 000 m
2
.
He, however, recommended that the application be approved subject to
certain conditions to be included in Table D, additional
control 3,
in order to address the concerns raised by a certain objector.
Instead of increasing the GLA to 30 000 m
2
he recommended that it be increased to 31,000 m
2
but that the consent of the appellant and the provincial Department
of Transport be obtained for any development exceeding 28 000 m
2
.
His recommendation was that the restriction of shop GLA of 25 000 m
2
in Table C be removed.
[23]
This analysis provides the context, the purpose of the amendment of
the controls and the background to their amendment in the
light of
which they should be construed.
[24]
In the high court the appellant submitted that when the zoning was
changed in November 2011 Table C was amended to remove the
restriction on GLA of ‘shop’. It argued that Table D was
amended to limit the total GLA of the Centre, and to introduce
controls relating to traffic and where expansion might take place.
The appellant contended that it was only in Table C (which deals
with
use zone) that GLA relates to premises used as ‘shop’.
The appellant argued that Table D (which deals with density)
never
distinguished between shop and non-shop space, or between types of
use at all. The appellant argued that prior to September
2005 and
since November 2011 Table D fixed permissible density by reference to
the GLA of the total property, between those dates
it was fixed with
reference to total floor area.
[25]
The high court rejected the construction contended for by the
appellant that GLA means anything whether it is lifestyle component
or retail type component. The high court held that it was satisfied
that, based on the correspondence exchanged between the parties’
legal representatives and in particular the letter addressed to the
appellant's attorneys of record by the respondent's attorneys
on 24
August 2012, the parties had by their conduct understood the term GLA
to refer to shop space. The high court accepted the
construction
contended for by the respondent on the grounds, first, that it was
consistent with the manner in which the parties
had implemented the
zoning provisions, as reflected in the correspondence exchanged
between the parties’ attorneys. Secondly,
that the
interpretation contended for by the respondent advanced the purpose
of the scheme. This holding was based on the reasoning
that, if it
were to adopt the construction of GLA contended for by the appellant
that would result in uncertainty, because such
interpretation would
render the meaning of GLA elastic. Finally, the high court held that
the interpretation of GLA contended for
by the respondent had to be
preferred to that of the appellant as it would avoid absurdity and
unconstitutionality. The high court
accordingly granted an order in
terms of prayers 1.1; 1,2; 1.3; 2 and 3 of the notice of motion.
[26]
Before this court counsel for the appellant submitted that the words
‘the total GLA of the Property’ do not mean
only the GLA
of shops if the words are given their ordinary meaning, in the light
of the ordinary rules of grammar and syntax.
He argued that it was
not contextually or purposively possible to ascribe a special meaning
or different meaning to the words ‘the
total GLA of the
property’ so as to make them mean ‘the GLA of shops
only’.
[27]
One is required to interpret the zoning provisions in accordance with
the principles enunciated in recent cases such as
KPMG
[1]
,
Endumeni
[2]
,
Bothma-Batho
[3]
and
Dexgroup
[4]
.
The approach to interpretation of written instruments, be they
contracts or statutes is usefully summarized thus in
Dexgroup
para
16:
‘…
These
cases make it clear that in interpreting the starting point is
inevitably the language of the document but it falls to be
construed
in the light of its context, the apparent purpose to which it is
directed and the material known to those responsible
for its
production. Context, the purpose of the provision under consideration
in the background to the preparation and production
of the document
in question are not secondary matters introduced to resolve
linguistic uncertainty but are fundamental to the process
of
interpretation from the outset’.
[28]
Having regard to the context in which the words are used, the purpose
to which they are directed and how their inclusion in
Table D of
Special Zone 10 came about, I conclude that the words ‘the
total GLA of the property’ should be interpreted
to comprise
areas leased out by the respondent to be used as ‘shop’
and all the areas used exclusively by the shop
tenant. My conclusion
is based on the following. First, it is apparent from the history of
the Lifestyle Centre that the whole
purpose of its design was to
create a mix of uses and was to include lifestyle features such as
restaurants, a nursery, large open
walkways and water features and
service providers such as the Post Office and banks. In terms of the
design, the Lifestyle Centre
was to be different from a conventional
shopping centre dominated by retail outlets. The whole purpose of
creating the Lifestyle
Centre would be defeated if GLA was not
confined to shops, because, on the appellant’s interpretation
of GLA, all lifestyle
features such as restaurants, nurseries, animal
farms, a gymnasium, open air tea gardens and an open air theatre
would fall within
the definition of GLA, because notionally they are
capable of being leased out. The result is that lifestyle features
and service
providers such as the banks and Post Office would compete
with shops for permissible space which could lead to a situation
where
there would be no lifestyle features or service providers,
because all GLA will be taken up by shops. This would undermine the
whole notion of a Lifestyle Centre as conceived by the respondent
from the outset.
[29]
Secondly, if regard is had to the conduct of the parties both before
and immediately after the amendment of the zoning provisions
in
November 2011 it is apparent that both parties understood GLA as
comprising shop retail space and this position is reflected
in the
correspondence exchanged between the parties’ legal
representatives.
[5]
Additionally
in his evaluation report dated 19 October 2011 Van der Merwe stated
that ‘the restriction placed on the maximum
G.L.A. for “shop”
has, since the introduction of the “Special Zone 10 : Lifestyle
Centre” into the Ballito
town planning scheme clauses, been an
additional control with specific reference to “shop”
only.’ This approach
is justified in this matter because this
practice provides evidence which demonstrates that for a period of
time both the appellant
and the respondent shared a common
understanding that GLA only relates to retail space.
[6]
[30]
That both parties understood that GLA relates only to 'shop' is
further demonstrated by the following instances. Firstly, during
2006
in an appeal by a third party to the Provincial Planning and
Development Commission against changes to the zoning provisions,
the
appellant's legal representatives submitted written argument
defending its decision to grant an application to amend the zone
controls by increasing the GLA from 14 000 to 25 000
m
2
and removing a total floor space
restriction. The appellant argued that the increase in GLA in respect
of shops did not give the
respondent a blank cheque for development
because the proposed development would still be subject to floor area
ratio ('FAR'),
coverage and height restrictions. The extent of the
property exceeds 69 000
m
2
,
leaving a balance above
the GLA limit of 25 000
m
2
,
which applied at the time, of more
than 44 000
m
2
.
It would be absurd to suggest that the appellant's legal
representative was contending that 44 000
m
2
would constitute areas that could not
be let out at all.
[31]
Secondly, during December 2008, the appellant approved the as-built
plans for the second phase of the development of the Lifestyle
Centre. At that time, the limit on GLA was 25 000
m
2
.
In respect of those plans the respondent had calculated GLA on its
interpretation and the appellant's current interpretation.
On the
appellant's current interpretation, GLA per that plan was 24 874
m
2
excluding the area occupied by the
nursery. At that stage, the nursery measured 2 751
m
2
.
Had the nursery been taken into account by the appellant in
calculating GLA, the appellant could never have approved the plans
for phase 2 (as it did) because GLA, on its current version, would
have been 27 625
m
2
when the limit was 25 000
m
2
.
The appellant now contends that, because a nursery is capable of
being let out, it falls to be included in GLA (despite having
earlier
admitted that a nursery was a lifestyle component). If this was the
case, the appellant could never have approved the plan
during
December 2008.
[32]
To sum up, bearing in mind that when the amendment was sought in June
2011 the shop GLA restriction of 25 000 m
2
applied, it is quite inconceivable that the words ‘the total
GLA of the Property’ appearing in Table D, additional
control 3
were intended to apply to all areas - shop and non-shop areas- at the
Centre. If it were so, it means that there would
be no more space for
accommodating lifestyle features and service providers at the Centre
which in terms of the scheme clauses
are excluded from the definition
of ‘shop’.
[33] The next question is
what uses at the Lifestyle Centre should be excluded from the
definition of 'shop' for the purposes of
zoning controls. In terms of
scheme clauses 'shop'
"means a building or land used for any
retail trade or business wherein the primary purpose is the selling
of goods and appliances
by retail and includes a building used for
the purpose of a hairdresser, ticket agency, showroom (including
motor showroom restricted
to the display and sale of vehicles only),
auction mart or for the sale of food and drink for consumption off
the premises or for
the reception of goods to be washed, cleaned,
altered, dry-cleaned or repaired and includes ancillary buildings
ordinarily incidental
to the conduct of the retail business, but does
not include an industrial building, garage, service station, milk
depot or hotel".
I
did not understand counsel for the appellant to dispute that the
definition of a 'shop' excludes all uses as set out in paras
1.2.1 to
1.2.12 of the notice of motion. In these circumstances there existed
no legal basis for the appellant to have refused
to consider the
building plans submitted to it by the respondent and two of its
tenants.
[34]
What remains to be considered is the relief. The high court granted
the relief sought in prayers 1 to 4 of the notice of motion.
In terms
of paragraph 2 of the order, the appellant was directed to consider
building plans concerned in terms of the declared
definition of GLA
and make decision within 60 days of the grant of the order. In
paragraph 3 the high court ordered the appellant
to consider all
other building plans submitted to it by the respondent or its tenants
in the light of the declared definition of
GLA and make a decision
within 60 days from the date of the submission of such plans to the
appellant. In my view paragraphs 2
and 3 of the order should be
amended in line with s 7 of the National Building Regulations
and Building Standards Act, 103
of 1977 (the Building Standards Act)
which governs the process of approving building plans. In terms of
s 7 of the Building
Standards Act a local authority must
consider the building control officer’s recommendation made in
terms of s 6. If
a local authority is satisfied that the
application for approval complies with the requirements of the
Building Standards Act and
other applicable law, it must grant the
approval unless it is satisfied that the erection of the building to
which the plans relate
will trigger one of the disqualifying factors.
In that event, the local authority must refuse to grant its approval
in respect
thereof and give written reasons for such refusal.
[35]
It is therefore not necessary to include in paras 2 and 3 of the
order a stipulation directing the appellant to consider the
building
plans concerned in the light of the declared definition of GLA.
[36] Had this been the
majority judgment, I would have granted an order in the following
terms:
1 The appeal is dismissed
with costs including costs of two counsel.
2 Paragraphs [1] 1.1; 1.2
and 1.3 of the order of the high court are confirmed.
3 Paragraphs 2 and 3 of
the order of the high court are set aside and replaced with the
following:
'1. The respondent is
ordered to consider the building plans submitted to it by the
applicant with plan numbers 12/05/289; 12/08/523
and 13/06/307, and
either approve such plans or properly inform the applicant in writing
of the reason for any refusal, within
60 days of the grant of the
order in this matter;
2. The respondent is
further ordered to consider all other building plans submitted to it
by the applicant or its tenants and either
approve such plans or
properly inform the applicant or the party submitting such plans in
writing of the reason for any refusal,
within 60 days of the grant of
this order.'
_____________
D H Zondi
Judge of Appeal
Mbatha JA (Leach JA
concurring)
[37]
I have had the benefit of reading the judgment of my brother Zondi JA
(the main judgment). The main judgment dealt with the
interpretation
of the town planning scheme which applies exclusively to the
Lifestyle Centre in Ballito. In the main judgment,
Zondi JA found in
favour of the respondent in respect of both issues. I respectfully
hold a different view. The crux of the matter
is whether the total
GLA of the Ballito Lifestyle Centre should be interpreted to mean
only the area relating to the shops as defined
in the scheme or
rather to mean all the retail areas let out by the respondent.
[38]
It is apposite that one should understand what is meant by the town
planning scheme before dealing with the interpretation
of the term
GLA. The scheme is an essential part of the Town Planning Programme.
The Constitutional Court, in
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal & others
[2010]
ZACC 11
;
2010 (6) SA 182
(CC) para 57, aptly described the term
municipal planning as follows: ‘the term [municipal planning]
is not defined in the
Constitution. But “planning” in the
context of municipal affairs is a term which has assumed a
particular, well-established
meaning which includes the zoning of
land and the establishment of townships. In that context, the term is
commonly used to define
the control and regulation of the use of
land.’
[39]
The land management or town planning lies in the hands of the
municipality through the scheme. The municipality exercises
control of the town planning process through the scheme, hence
applications for rezoning and special consents are to be made. The
scheme may therefore be amended from time to time to accommodate
changes in the development of the town.
[40]
This court, in
JDJ
Properties CC and Another v Umgeni Local Municipality and Another
[2012] ZASCA 186
;
2013 (2) SA 3955
(SCA) para 28, stated that the
Town Planning Ordinance 27 of 1949 (Kwa-Zulu Natal) contained
the general purpose of a town
planning scheme which is to
achieve ‘a co-ordinated and harmonious development of the
municipal area .
. . in such a way as will most effectively
tend to promote health, safety, order, amenity, convenience and
general welfare’.
In general town planning schemes are
conceived not only in the interests of the general public but in the
interests of inhabitants
of the area covered by the scheme.
(
Administrator
Transvaal and the Firs Investments (Pty) Ltd v Johannesburg City
Council
1971 (1) SA
56
(A) at 70D;
BEF
(Pty) Ltd v Cape Town Municipality & others
1983 (2) SA 387
(C) at 401F).
[41]
The previous applications for rezoning were submitted to the
appellant in terms of s 47 of the Town Planning Ordinance 27 of
1949.
The current planning legislation applicable to KwaDukuza is the
KwaZulu-Natal Planning and Development Act 6 of 2008. The
former,
amongst other things, provides for the adoption, replacement and
amendment of the scheme. Most significantly, it provides
for the
alteration, suspension and deletion of restrictions to land. The aim
being to promote a uniform planning and development
system, which
treats all citizens of the province equitably, provide a fair and
equitable standard of planning and development
to everyone and favour
lawful development and other values. In this regard, the appellant
was empowered to alter the previous determinations
on the GLA, for
the purposes of controlling density in line with the development of
the town and the nature of the Lifestyle Centre.
Therefore the
provisions of the scheme apply to the respondent as well. The
appellant being a regulatory authority has a duty to
amend the scheme
for the benefit of the inhabitants of the area covered by the scheme.
In that regard it has a duty to balance
the interests of the public
as well as those of the respondent, the developer.
[42]
The respondent had a duty to submit plans for approval prior to
commencing with building extensions on the Lifestyle Centre.
The
respondent’s reliance on previously approved plans under
previous schemes instead of the current version of the town
planning
scheme was misplaced. By so doing the respondent tried to bypass the
special zoning provisions in the current scheme.
[43]
In seeking an order compelling the appellant to consider the plans
the respondent was forcing the appellant to consider plans
that would
be in line with its own definition of GLA. The calculations of the
GLA by the respondent were made
ex
post facto
the
submission of the plans for approval. The respondent caused the
buildings to be built without approved plans and was trying
to
regularize the position by relying on the previous determinations by
the appellant.
[44]
In considering how the term GLA should be defined, a material
consideration should be the nature of the Lifestyle Centre, as
the
term GLA is not defined in the scheme. It is common cause that the
nature of the Lifestyle Centre, rezoned to Special Zone
10, is not a
conventional shopping complex. The main judgment describes it as a
holistic complex of shops, restaurants and entertainment
facilities,
with the focus on outdoor living areas, including a nursery, having
recreational facilities like an animal farm, gymnasium,
wellness
centre, open air gardens and extensive landscaping. It is clear from
this description that the purpose of a lifestyle
centre is for
‘lifestyle’ enjoyment rather than for shopping. It
inconceivable that the meaning of GLA was intended
to apply to shops
only to the exclusion of other lettable areas, as this would go
against the nature and purpose of the Lifestyle
Centre. The dominance
of the shops over the lifestyle activities was never envisaged in the
town planning scheme.
[45]
I do not agree that the definition for which the appellant contends
will defeat the purpose of a Lifestyle Centre. A lifestyle
centre was
not intended to have the shops dominate the entire development area.
The finding in the main judgment that the proposed
development would
still be subject to the floor area ratio (FAR), coverage and height
restriction, would defeat the purpose of
a lifestyle centre.
[46]
My colleague is of the view that it is quite inconceivable that the
words the total GLA of the property appearing in Table
D, additional
control 3, were intended to apply to all areas, shop and non-shop
areas. This was introduced as a measure of control
in the latest
scheme to control density. The increase in shop area only, would have
the effect of increasing density to the Lifestyle
Centre, without
consideration of the traffic volumes and environmental impact on the
part of the town. The appellant confirmed
that in the previous
schemes the nursery was not taken into account. However, it was
considered when the current controls were
introduced in November 2011
to limit the total GLA. There is nothing amiss with regard to that
amendment, as the nursery is a lettable
area.
[47]
In
Tronox KZN Sands
(Pty) Ltd and KwaZulu-Natal Planning and Development Appeal Tribunal
and Others
[2016]
ZACC 2
;
2016 (4) BCLR 469
(CC), the Constitutional Court confirmed
that municipal planning decisions lie within the exclusive competence
of municipalities.
The term GLA can therefore not be interpreted in
isolation from the considerations taken into account by the appellant
when amending
the scheme. The short to medium term solutions,
limiting extensions to no more than 20 percent of the current GLA per
anchor tenant,
mostly to the southern and south western parts of the
centre, to curtail the impact on the current access and parking areas
were
well considered and within the competency of the appellant. The
extension of the MICA shop was not accepted as it was too
substantial.
This was in line with Van der Merwe’s
recommendations which were based on traffic considerations which have
not been challenged
by the respondent. Van der Merwe recommended that
the total GLA of the property be restricted to 31 000 m²
and that
the development was not to exceed 28 000 m² subject to
approval by the appellant and the Department of Transport.
[48]
Van der Merwe, an expert, who considered the application by the
respondent, proposed progressive adjustments to accommodate
the
respondent’s plans, subject to the approval by the Department
of Transport. This was done after consideration of the
concerns
raised by an objector and the Department of Transport. The main
considerations being traffic consideration along the MR398
and MR445
and that the Lifestyle Centre was never intended to be a conventional
shopping complex. It was therefore incumbent upon
the appellant to
place additional controls to limit the total GLA of the centre, until
such time as the larger central business
area had been evaluated in
terms of the Kwa-Dukuza Scheme review process.
[49]
Town planning, management and considerations of traffic volumes lie
only within the competency of the appellant. The respondent
seemed to
suggest that because the town has not grown in terms of development
and volumes in traffic the rules which were applicable
when the town
was static, should apply in the present times. The GLA definition
which should be accepted is the one provided in
Table D, as it caters
for density controls of the centre. The term GLA should be
interpreted in the context of the nature of the
centre and
purposively. Density control is the main consideration here, not the
ambitions of the respondent.
[50]
For the definition of GLA, one can only look at the definition
provided in Table D, which deals with density controls. It refers
to
‘the total GLA of the property’ it does not refer to ‘the
total GLA of the shop’. The meaning of the
words interpreted in
their context and purposively, within the constraints imposed by the
language should be accepted as the proper
interpretation. (See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
[2012] 2 ALL SA 262
(SCA) para 20–24). Density
control is the main controlling factor in considering the proposals
by the respondent.
[51]
The scheme defines ‘Gross shop area’ – ‘as
the sum of the floor areas of both the storage and retail
areas of a
shop and shall include wall thickness and basements used other than
for parking purposes but shall exclude public convenience’.
This is significant as it shows that the GLA applies to all lettable
areas. The purpose of leasing property is to generate income
from all
lettable areas hence GLA should apply not only to shops, but to
exclusive use areas and the nursery.
[52]
There is nothing irregular from the proposals made by Van der Merwe
that the proposed amendment related to the GLA of the property.
In
considering which meaning should be accepted, a businesslike meaning
needs to be adopted rather than an unbusinesslike meaning,
which
undermines the purpose of a Lifestyle Centre. Van der Merwe was
open-minded in stating that should the appellant wish to
consider a
further development of the centre; it will have to be subject to ‘the
pre approval of other state organs.’
[53]
The current planning legislation, the KwaZulu-Natal Planning and
Development Act 6 of 2008, provides in s 6(7) that the current
scheme
replaces all planning schemes within the area of its operation.
Furthermore, in s 6(10) it provides that ‘[a]ny
extension
to buildings or structures on land contemplated in subsection 9 must
comply with the scheme’. Section 9(1) provides
that the
municipality may initiate the amendment of the scheme. These
provisions allow for a rectification on any previous genuine
mistakes
in the scheme by both parties. Even if there was no mistake on the
part of the parties, it could still be argued that
the previous
amendments were in line with the existing scheme at the time. The
appellant in this case was not bound by previous
rulings on rezoning
and special consent which were made in line with the previous
schemes. The current approvals should be in line
with the scheme that
is currently in existence.
[54]
The recommendations made by Van der Merwe that the total GLA, of the
property will be permitted subject to the approval of
the appellant
and the KZN Department of Transport should prevail. The definition of
the GLA of the shop as stated in the main judgment
is not in line
with the nature of the centre and the current scheme of the KwaDukuza
town.
[55]
I respectfully find that the appellant should not be ordered to
consider the plans submitted by the respondent. The respondent
knew
very well that it had to obtain approval before building. The
interpretation of GLA as contended for by the respondent was
to try
to regularize the illegal building without the approved plans. This
was a ruse on the part of the respondent.
[56]
The appellant did not refuse to consider the plans submitted by the
respondent. The appellant merely sent a referral to the
respondent in
terms of s 7(5) of the National Building Regulations and Building
Standards Act 103 of 1977, advising the respondent
that it will
refuse to approve plans whilst the GLA on the property exceeded the
permitted area in terms of the current scheme.
The appellant was
exercising its regulatory authority in this regard.
[57]
In the result, I make the following order:
1 The appeal is upheld
with costs.
2 The order of the court
below is set aside and replaced with the following order:
‘
The
application is dismissed with costs.’
__________________
YT
Mbatha
Judge
of Appeal
Plasket
JA (Leach JA concurring)
[58]
I agree with the order proposed by my sister Mbatha. I am
consequently unable to agree with the conclusion reached by my
brother
Zondi. I shall set out briefly my reasons for that
disagreement.
[59]
As Zondi JA has set out the facts and the context within which the
interpretation of the zoning scheme must occur, I proceed
directly to
our point of divergence. That involves a consideration of the use and
density controls from the inception of the zoning
scheme to the last
amendments that were effected in 2011, and which apply at present.
[60]
At its inception, the use controls applicable to the lifestyle centre
referred to a restriction of 14 000m
2
GLA in relation to shops and, in the density controls, it was
provided that the total floor space could not exceed 25 000m
2
GLA.
[61]
When the scheme was amended in July 2005, GLA in respect of shops in
the use controls was increased to a maximum of 25 000m
2
and, in the density controls, total floor space was limited to
25 000m
2
.
Total floor space was thus de-linked from GLA.
[62]
When the scheme was amended in October 2007, GLA in respect of shops
continued to be restricted to 25 000m
2
in the use controls and, in the density controls, total floor space
was increased to 28 000m
2
.
Again, no linkage between total floor space and GLA was maintained.
[63]
Finally, when the scheme was amended in 2011, the prior reference to
GLA in relation to shops was deleted in the use controls,
and the
density controls were amended to provide that the ‘total G.L.A.
of the Property be restricted to 31 000m
2
and no development exceeding 28 000m
2
of G.L.A. will be permitted unless . . .’.
[64]
What emerges from this history of the use and density controls is
that over a period of time, the appellant, in successive
amendments,
moved steadily away from the original linkage between shops and GLA
as the means to achieve the unique features of
the lifestyle centre.
[65]
The complete de-linking of GLA from shops in the 2011 amendment
cannot be wished away. The words used in the use and density
controls
cannot simply be ignored. To read into those words precisely what the
appellant deliberately left out would be to legislate
for the
appellant, rather than to interpret the product of the appellant’s
application of mind.
[66]
I do not believe that the plain meaning of the use and density
controls, within their historical context, can be trumped by
reliance
on the purpose of the scheme: if the result of the 2011 amendment was
impermissible for want of a proper purpose on the
part of the
appellant, review rather than interpretation would be the remedy.
[67]
In my view, the respondent was not entitled to the declarator that
the term ‘GLA’ in the scheme relates ‘only
to the
relevant retail space for the exclusive use of retail shop tenants’
and ‘excludes uses other than “shop”
as defined in
the scheme . . .’. The rest of the relief that was sought and
granted was reliant on the grant of this declarator.
The application
in the court below ought, for this reason, to have been dismissed.
[68]
In the result, I would uphold the appeal with costs, set aside the
order of the court below and replace it with an order dismissing
the
application with costs.
_________________
C Plasket
Judge of Appeal
APPEARANCES:
For
appellant:
G D Goddard SC
Instructed
by:
Shepstone
& Wylie Attorneys, Umhlanga Rocks
Webbers,
Bloemfontein
For
respondent: A M Annandale SC
A J
Boulle
Instructed
by:
Richard
Evans & Associates, Kloof
Symington
& De Kok Inc, Bloemfontein
[1]
KPMG Chartered Accountants
(SA) v Securefin Ltd and Another
2009
(4) SA 399
(SCA) paras 29-40.
[2]
Natal Joint Municipal Fund
v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18.
[3]
Bothma-Batho Transport
2014
(2) SA 494
(SCA) para 12.
[4]
Dexgroup
Pty Ltd v Trustco Group International (Pty) Ltd
[2013] ZASCA 120; [2014] (1) All SA 375(SCA).
[5]
Commissioner, South African
Revenue Services v Bosch
[2014] ZASCA 171
;
2015 (2) SA 174
(SCA) para 17.
[6]
Marshall NO v Commissioner
for the South African Revenue Service
[2008] ZACC 11
;
2019 (6) SA 246
(CC) para 10.