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[2011] ZAKZPHC 39
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Durban Point Development Company (Pty) Ltd v Durban Paddle Ski Club (8525/2009) [2011] ZAKZPHC 39 (9 September 2011)
1
Reportable
IN THE KWAZULU NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO. 8525/2009
In the matter between:
DURBAN POINT DEVELOPMENT
COMPANY (PTY) LTD
…........................................................................
APPLICANT
and
DURBAN PADDLE SKI CLUB
….......................................................
RESPONDENT
JUDGMENT
MURUGASEN,
J.
1] This is an application by the owner
of immovable property for the eviction of a lessee whose tenure under
a lease agreement between
the parties has been duly terminated.
2] The applicant herein, Durban Point
Development Company (Pty) Ltd seeks an order for the eviction of the
Respondent, Durban Paddle
Ski Club and any person or persons
occupying by, through or under the respondent, from its property
described as Remainder of Erf
12524 Durban (the property) situate on
the Durban beachfront. The respondent was previously in lawful
occupation of a portion of
the property under and in terms of a
written agreement of lease. The lease was terminated on notice by the
applicant, and the respondent
was obliged to vacate the property by
or before 30 June 2008.
3] It is common cause that the
property is to be developed as part of a project termed the “Point
Development Project”
initiated by the eThekwini Municipality in
2001. The applicant has obtained the requisite approval to proceed
with the next phase
of the project which includes the construction of
a ‘superbasement’ on the property and other sites owned
by the applicant,
and a small craft harbour. The applicant avers that
the superbasement will be constructed within the confines of its own
property
and not encroach on land outside its boundaries.
4] The respondent opposes the
application on the following grounds :
the relief sought would breach an
undertaking allegedly given to the respondent in respect of its
relocation;
the intended development is not in
the public interest; and
the application for eviction is
premature because review proceedings have been instituted against
the dismissal by the Department
of Environmental and Agricultural
Affairs ( the department) of the appeals lodged by the respondent
and others against the approval
for the development granted to the
applicant. There is further, a separate application in respect of
the Beacons and Boundaries
agreement and the dispute in respect of
the determination of the high water mark, and consequently a
prospect that the boundary
or boundaries of the applicant’s
property may be resurveyed, which may in turn impact on the area to
be developed (which
includes the area currently occupied by the
respondent).
5] The respondent nevertheless deals
with the issues under review and in the other application
comprehensively in its heads of argument,
only to thereafter concede
that the issues do not lie within the purview of this application as
they form part of the other application
or review and are submitted
to this court only in the context that the issues impact on the
respondent’s contention that
the court ought to direct that the
eviction application be pended until the outcome of the other
proceedings are determined.
6] In any event I am not persuaded
that the issues ought to have been placed before this court as the
issue to be decided in respect
of the application for eviction is a
narrow one which relates to the rights of tenure and to the
protection and promotion of public
interest only to the extent that
such interest is affected by the eviction application and the
proposed development of the property.
This has resulted in the court
being unduly burdened with voluminous, irrelevant and repetitive
pleadings and supporting documentation,
which has contributed to the
delay in the finalisation of this application.
7] I am also unable to find that the
review proceedings are a bar to the finalisation of this application.
In the premises the issues for
determination are restricted to the termination of the lease and the
first two grounds of opposition
raised by the respondent.
Termination of the lease
8] No challenge to the applicant’s
ownership of the property lies for determination in this application
and albeit the issue
of ownership is raised by the respondent, the
respondent states in the answering affidavit the it ‘does not
contest the applicant’s
right as owner to have the respondent
evicted should the respondent unlawfully remain in occupation’.
9] It is common cause that the
applicant in its capacity as registered owner of the property and
lessor, served due notice of one
calendar month on the respondent per
a letter dated 14 December 2007 from its attorneys to the effect that
the lease would terminate
on 31 January 2008, and the applicant
required the respondent to vacate the property by no later than 30
June 2008.
10] The respondent has acknowledged
the right of the applicant as owner to evict it and despite its
averments about the intended
dates of occupation as opposed to the
dates actually recorded on the agreements, there is no application
for rectification of the
relevant lease agreement and no challenge to
the termination of the lease.
11] Consequently as the lease was
lawfully terminated, the respondent’s continued occupation
after 30 June 2008 is unlawful.
(Cooper Landlord and Tenant 2
nd
edition pages 315- 316).
The Grounds of Opposition
The ‘undertaking’
12] As properly pointed out by Mr
Salmon, the onus lies on the Respondent to prove that there existed
‘a firm and binding
undertaking’ by the applicant to
relocate the respondent and the other watersports clubs before
summarily evicting them from
their present sites and buildings, and
that the undertaking was sufficiently certain and not a mere offer to
negotiate.
13] In a letter dated 22 January 2008,
the respondent alludes to the following statement by the applicant in
a letter dated 1 August
2007 to Pravin Amar Development Planners :
‘
It is, and
has always been the stated intention of the DPDC to accommodate as
far as possible the various users of the sea and beach
within the
development framework of the Point Waterfront’,
on which it relies as constituting the
undertaking by the applicant.
14] The applicant denies that the
aforegoing statement is an undertaking, contending that it cannot be
construed as one nor was
it addressed to or capable of being accepted
as an undertaking by the respondent. In particular it did not confer
on the respondent
a right of occupation nor does it have a bearing on
the eviction of the respondent. Furthermore the statement did not
constitute
an assurance that the respondent would be accommodated in
the new small craft harbour, and no offer to accommodate the
respondent
was made or open for acceptance by the respondent. The
applicant also points out that the alleged undertaking has also
mutated
in strength from being a stated intention to being an
assurance that the respondent will be accommodated.
15] The applicant has submitted
further that although there was no obligation on it to do so, it has
made land available to the
Point Watersports (Pty) Ltd which was
constituted by all the watersports clubs in the Point area. By way of
an agreement concluded
in July 2008, all the clubs accepted a
two-phased relocation. The respondent initially participated in the
negotiations with the
applicant, but later voluntarily withdrew from
the negotiations which culminated in the agreement with the other
clubs. Nevertheless
the applicant has made provision for the
accommodation of the respondent on the land set aside for the water
sport clubs. The applicant
denies that the site set aside for the
relocation is unsuitable, contending that the respondent’s
objection about the high
water mark is not valid as it will not
affect the accommodation offered to the clubs.
16] The respondent on the other hand
contends that the application is premature because, although it has
accepted the offer by the
applicant, the applicant has not provided
alternative premises to the respondent in the same area from where
access to the beach
is ensured in compliance with its undertaking,
and consequently the respondent is entitled to remain in occupation,
until the applicant
fulfils its obligations in terms of its
undertaking.
17] Having considered the advices
relied on by the respondent according to the ‘golden rule’
of interpretation per Joubert
JA in
Coopers & Lybrand and
Others v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A) at 768A - E
‘
the language
in the document is to be given its grammatical and ordinary meaning,
unless this would result in some absurdity, or
some repugnancy or
inconsistency with the rest of the document’
and further that :
‘
A particular
word or phrase should never be interpreted in isolation ‘
in the context of the surrounding
circumstances and related correspondence and documents, in my view,
the relevant statement does
not warrant the construction that it is a
‘solemn undertaking’ or an assurance that the applicant
will definitely accommodate
the current occupiers of the property
irrespective of competing demands, but is an expression of its
intention to accommodate them
as far as is reasonably possible,
within the constraints imposed by the intended development as well as
the requirements of the
watersports clubs themselves to function
effectively.
18] The reliance by the respondent on
the existence of an undertaking is therefore in my view misplaced.
Furthermore, I am not persuaded,
despite the contentions of the
respondents, that the applicant’s stated intention may or ought
to be elevated to a binding
and enforceable contractual obligation.
19] Further, such intention could only
come to fruition through negotiation between the parties, which is in
fact what took place
and culminated in the conclusion of the
memorandum of agreement in July 2008, from which the respondent
deliberately withdrew because
of its dissatisfaction with the
proposed relocation sites and the impact on its members.
20] It is remarkable that the three
constituent clubs and their umbrella body, the Point Watersports
Clubs, were satisfied with
the arrangements for the relocation and
accepted the site for their new clubs without raising the same
objection as the respondent.
And yet by the respondent’s own
admission the site occupied by it is relatively small, being
approximately 900 square metres,
compared to the site occupied by the
other watersports clubs.
21] However as the respondent has
failed to establish an undertaking on the part of the applicant and
as the applicant has adequately
established that the property is
required for the intended development, the respondent is obliged to
vacate the property. It cannot
rely on its own undertaking to do so,
conditional upon when the applicant has a real need for the property,
which will arise only
once the impediments to the commencement of the
development have been surmounted, especially as the respondent has
itself contended
that it is highly unlikely that the applicant will
get the necessary approval, including the approval from parliament,
as the projected
development is ‘not in the general interests
of the wider public, as demonstrated in the expert Social Impact
Assessment
Report’.
22] The right of the applicant as
owner to its property or to develop or utilise it as intended, cannot
be made subservient to an
undertaking by the respondent as unlawful
occupier to end its occupation only when the applicant is ready to
proceed with the development,
as such a situation will erode the
rights integral to the ownership of property.
Public Interest
23] The respondent also opposes the
eviction on the grounds of public interest, contending firstly that
it is itself a public interest
body, secondly that the eviction will
deprive the public of the benefit of access to the beach and the
members of the respondent
of a suitable place to launch its
paddleskis, and thirdly, the adverse environmental impact of the
intended development.
24] The applicant denies the status
claimed by the respondent on the basis that not a public interest
group as defined in S29 of
the constitution of South Africa, but a
private club with approximately 300 members and has imposed
restricted access to the beach.
Only 112 members signed the
memorandum in support of the respondent’s opposition.
25] I deal with the contentions
sequentially.
26] The respondent is a private club
with limited membership, which promotes and protects the interests of
its members, and is therefore
not a public interest group as defined
in the constitution. While it is a member of the Save Vetch’s
Association which is
a public interest group and its affiliated
interests will be promoted and protected by the Save Vetch’s
Association which
has instituted the review proceedings referred to
supra,
the respondent’s membership does not invest the
respondent with the same status and does not assist the respondent in
its
resistance to the application for its eviction.
27] Furthermore a perusal of the
membership of the respondent does not persuade me that it is
representative of the demographics
of the general public who will
benefit from the wider use of the facilities envisaged under the
intended development of the property.
28] It appears reasonable to infer
from the conclusion of the memorandum of agreement between the
applicant and the watersports
clubs that there has been reasonable
engagement with the respondent and other occupiers, although the
respondent withdrew from
the negotiations. There must of necessity be
practical and logistic difficulties to overcome in the process of
relocation which
includes the inability to provide exactly the same
facilities as existed prior to the relocation, which in turn imposes
on the
parties an obligation to consult and negotiate an arrangement
satisfactory to all. Negotiation does not entail demand and supply
as
the conduct of the respondent seems to suggest, despite its
protestations that it has always maintained a reasonable and open
door policy with the applicant.
29] This is borne out by the following
excerpt from page 2 of the Record of Decision dated 13 February 2009
(page 750 of the indexed
papers) :
‘
Option “S”
will accommodate all the present functions in terms of beach
activities albeit in a reduced capacity. The
present arrangement of
activities will change with swimmers, surfers and boaters utilising
different areas of the beach to ensure
safety of all parties. Clubs
will be consolidated in an area adjacent to the new North Pier with
storage facilities to house their
boats.’
30] I am alive to the strong
opposition by the respondent to the reliability of the Record of
Decision to inform the court fully
of the practical and logistical
hurdles that the applicant will have to overcome and its contention
that as the applicant is consequently
not in a position to commence
the development the eviction is sought prematurely. This contention
has already been put to rest
and in any event the respondent’s
appeal against the Record of Decision was dismissed on 6 August 2009.
31] While conceding that the Point
Waterfront Development Protocol is not applicable or binding on the
applicant as it was not a
condition of the transfer of the property
when it was sold and transferred to it, the respondent contends that
the Protocol is
applicable by necessary implication, because the
eThekwini Municipality is a fifty percent (50%) stakeholder in the
applicant and
is ‘duty bound to strive for the ideal behind the
protocol in the interests of its citizens’.
32] The eThekwini municipality is a
stakeholder in the trust which owns a fifty percent interest in the
development. There is therefore
public involvement in the development
and public interest and benefit must be a decisive factor in relation
to the determination
of any issue relating to the intended
development.
33] Consequently although the
eThekwini municipality is not the applicant herein but a stakeholder
and the development is a substantial
commercial undertaking, it must
nevertheless act with due regard to its duty to act fairly and to the
benefit of the public. As
a public authority, it must balance all
relevant public interests and with due regard to its duty of
fairness, it must act to the
benefit of the public. This is not a
commercial transaction in which the local authority may exercise a
contractual right without
regard to its obligation to act in the
public interest.
(see Cape Metropolitan Council v Metro Inspection
Services (Western Cape) CC and Others
2001 (3) SA 1013
(SCA) para 16
- 18).
34] However, that being said, it does
not serve the respondent to resist eviction from unlawful occupation
on the ground that it
is protecting the public interest as it is not
incumbent upon or necessary for the respondent to do so in the light
of the obligations
imposed on the applicant and the local authority.
35] The applicant is required to
obtain the necessary plans and approvals prior to the commencement,
during and after the completion
of the construction in compliance
with the relevant legislation and bylaws. Such compliance is intended
to ensure that no unlawful
encroachment on public property or the
property rights of others or infringement of any law or bylaw by the
applicant occurs in
the intended development and that the development
does not constitute a potential hazard to the public and other users.
36] Similarly, the high water mark
issue is an integral part of an application already instituted in
respect of the beacons and
boundaries, which may in due course have a
material bearing as it will determine where the Eastern boundary of
the applicant’s
boundary lies. But it is a risk assumed by the
applicant should it commence construction prior to the determination
of that application.
37] The applicant is clearly aware of
this and these are matters which it will have to take responsibility
for and engage with the
relevant authorities in connection therewith.
These concerns do not have a bearing on the right of the applicant to
evict an unlawful
tenant who remains in occupation in contravention
of his obligation to vacate the property. However in terms of the
alternative
order prayed the relief sought by the applicant will be
enforceable only after the applicant has obtained all the required
planning
approvals.
38] Furthermore I am satisfied from
the documentation before me that the applicant has engaged in
consultation with the public and
other interested bodies in
accordance with its obligation to the general public to ascertain
what is in the public interest, I
am also satisfied that the
development embraces the constitutional obligation on the local
authority to provide social and economic
development as well as to
promote public interest by developing a facility which will attract
and benefit tourists and locals alike.
39] To the contrary, I find no merit
in the contention of the respondent that its right to remain in
occupation of the property
is inextricably connected to the balancing
of the development and its advantages such as job creation, with
broad environmental
considerations and that it ought therefore be
allowed to remain in occupation of the applicant’s property
pending finalisation
of the review proceedings, adequate measures
being taken to protect the environment, and the determination of the
issues in relation
to the high water mark and the fixing of the
rectilinear boundary and that the application for eviction is
premature as ‘there
is no immediate or apparent reason why the
respondent has to go’.
40] In the premises the applicant is
entitled to the relief it seeks. However as the alternative order
sought by the applicant permits
the respondent to remain on the
premises until the requisite planning approvals are granted, I am
persuaded that it is appropriate,
given the duration of the
respondent’s occupation of its present premises.
Costs
41] There is no reason why costs ought
not follow the result. In the light of the nature and conduct of the
proceedings herein,
I am of the view that an order including the
costs of two counsel is appropriate.
The following order do hereby
issue:
1. Subject to paragraph 3 of this
order, the respondent, Durban Paddle Ski Club, (and any person or
persons claiming to occupy by,
through or under the respondent) is
directed to vacate forthwith the immovable property (and the
buildings erected thereon) described
as the “Remainder of Erf
12524 Durban”, situate in the Durban Point Waterfront.
2. In the event of the respondent
failing, refusing or neglecting to comply with the order granted in
terms of paragraph 1, the
Sheriff of this Court, or his duly
authorised Deputy, is hereby authorised and directed to forthwith
eject the respondent and any
person or persons claiming to occupy by,
through or under the respondent, from the aforesaid immovable
property (and the buildings
erected thereon), and to hand vacant
possession thereof to the applicant.
3. Paragraph 1 hereof will come into
operation one month after the respondent’s attorneys have been
notified in writing by
the applicant’s attorneys that the
applicant has obtained all the required planning approvals and
intends to commence construction,
including site preparation, on the
said immovable property.
4. The respondent is directed to pay
the costs occasioned by this application, such costs to include those
consequent upon the employment
by the applicant of two counsel when
so employed.
__________________
Counsel for the Applicant: Adv RJ
Salmon SC
Instructed by: Garlicke &
Bousfield Inc
Locally Represented By:
Thatham Wilkes & Co
200 Hoosen Haffejee Street
Pietermaritzburg
Counsel for the Respondent: Adv PAC
ROWAN SC
Instructed by: Cox Yeats
Locally Represented By:
Stowell & Co
295 Pietermaritzburg Street
Pietermaritzburg