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[2011] ZAKZPHC 53
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JDJ Properties CC and Another v Umgeni Local Municipality and Another (5653/10) [2011] ZAKZPHC 53 (18 November 2011)
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case
No.5653/10
In
the matter between:
JDJ PROPERTIES CC
…...........................................................................
First
Applicant
DOUBLE DIAMOND CC
…...................................................................
Second
Applicant
and
UMGENI LOCAL MUNICIPALITY
…......................................................
First
Respondent
TRIUMPH BROKERS (PTY) LTD
….................................................
Second
Respondent
JUDGMENT ON APPLICATION FOR LEAVE
TO APPEAL
SEEGOBIN
J
[1] This is an application for leave
to appeal against the whole of my judgement delivered on 7 June 2011.
Although the application
was opposed by the first and second
respondents, counsel were agreed that if I was disposed to granting
the applicants leave to
appeal, such appeal should lie before the
Supreme Court of Appeal.
[2] The application was based on the
following grounds:
“
1.
The court erred in finding that the First Respondent’s
decisions do not adversely affect the Applicants’ rights.
The
court ought to have found that as the owner and lessee of immovable
property subject to the same town planning scheme as the
Second
Respondent’s property, the Applicants had the right to
challenge decisions made by the First Respondent in terms
of the
Town Planning Scheme, and that the Applicants did not have to prove
prejudice in the nature of damages.
The
court ought to have found that a failure to properly apply the
provisions of the Town Planning Scheme constituted a sufficient
invasion of the rights of the Applicants, for the Applicants to be
entitled to challenge the First Respondent’s decisions.
The
court ought therefore to have found that the decisions of the First
Respondent which the Applicants challenged, were administrative
action.
The
court ought to have found that the ordinary meaning of the words
“any other building regulation” in Section 9
(1) (c) of
Act 103 of 1977 does not include a town planning scheme, and that
there are no reasons why there should be any departure
from this
ordinary meaning.
The
court ought therefore to have found that the Applicants had no right
of appeal in terms of Section 9 (1) (c) of Act 103 of
1977 and
therefore that they were not precluded by
Section 7
of the
Promotion
of Administrative Justice Act, 3 of 2000
from approaching the court
on review.
The
court ought to have found that the applicants had made out a case
for the relief sough by them.”
[3] There were several legal issues
that were raised in this matter and in respect of which I found
against the applicants. In particular
I took a different view from
that of Davis J in
Van Der Westhuizen and Others v Butler and
Others
2009(6) SA 174 (6) which found favour with the applicants
in the present matter. I also took the view that since the applicants
had failed to exhaust their internal or domestic remedies provided
for in section 9 of the Building Act, they were precluded from
seeking a review at this stage.
[4] It is arguable that another court
constituted differently may well come to a different conclusion from
the one that I have.
For these reasons I am disposed to granting
leave to the applicants to appeal against the whole of my judgement
delivered on 7
June 2011.
[5] I accordingly grant the following
order:
Leave is hereby granted to the
applicants to appeal to the Supreme Court of Appeal against the
whole of the judgement delivered
on 7 June 2011.
The costs of the application for
leave to appeal will be costs in the appeal.
Date of Hearing : 14 November 2011
Date of Judgment : 18 November 2011
Counsel for Applicant : Adv. Rall SC
Instructed by : Christopher Richard
Lee Attorneys
c/o J. Leslie Smith & Co. (Pmb)
Counsel for 1
st
Respondent:
Adv. R Van Rooyen
Instructed by : PKX Attorneys
Counsel for 2
nd
Respondent:
Adv. A Dickson SC
Instructed by : Jasat & Jasat
Attorneys