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[2008] ZAWCHC 223
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Club Mykonos Langebaan Ltd v Langebaan Country Estate Joint Venture and Others (10278/2006) [2008] ZAWCHC 223 (24 July 2008)
IN
THE
HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Reportable
Case No: 10278/2006
In
the matter between:
CLUB
MYKONOS LANGEBAAN LIMITED
Applicant
and
THE
LANGEBAAN COUNTRY ESTATE JOINT VENTURE
First
Respondent
OWEN
WIGGJNS (LANGEBAAN) (PTY) LTD
Second
Respondent
B
AS FOUR 3632 (PTY) LTD
Third
Respondent
THE
SALDANHA BAY MUNICIPALITY
Fourth
Respondent
THE
LANGEBAAN COUNTRY ESTATE
HOMEOWNERS
ASSOCIATION
Fifth Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
TRANSPORT AND PUBLIC
WORKS,
WESTERN CAPE
Sixth
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
ENVIRONMENTAL AFFAIRS
AND
DEVELOPMENT PLANNING, WESTERN CAPE
Seventh
Respondent
JUDGMENT
DELIVERED ON 24 JULY 2008
[1]
The applicant in this matter (to which I shall henceforth refer as
"CML") is Club Mykonos Langebaan Limited, a property
development company carrying on business at Langebaan in the Western
Cape Province.
[2]
The first respondent, the Langebaan Country Estate Joint Venture, is
afso a property developer. It was formed by the second
and third
respondents, which were the owners of a large tract of land
described as portion 1 of the farm Oliphantskop No. 191
at Langebaan
{"Oliphantskop"). The purpose of the joint venture was to
develop Oliphantskop, in six phases, and to
establish what is now
known as the Langebaan Country Estate.
[3]
The first three respondents were represented by one set of attorneys
and counsel and were referred to collectively in the
proceedings as
"the developer". I shall continue to describe the first
three respondents in this manner.
[4]
The
fourth respondent is The Saldanha Bay Municipality. Oliphantskop
fell within the municipality's area of jurisdiction under
the Land
Use Planning Ordinance, 15 of 1985 (I propose, in what follows, to
refer to this Ordinance as "LUPO" and to
refer to the
fourth respondent as "the Municipality').
[5]
The remaining respondents were cited only because of their potential
interest in the matter. No relief was claimed against
them and they
played no part in the proceedings. No more need be said about them.
[6]
For the development of the Langebaan Country Estate to commence it
was first necessary for the developer to rezone and subdivide
Oliphantskop. Section 16 (1) of LUPO empowers the Council of the
Municipality
"to
grant or refuse an application by an owner of fand for the rezoning
thereof,
and
section 25 {1} entitled the Council to
"grant
or refuse an application for the subdivision oflancT.
Approval
for such rezoning and subdivision had to be obtained from the
Council on application made under sections 17 and 24 of
LUPO. The
developer made such an application. Pursuant to an objection from
CML, with which the Council of the Municipaiity concurred,
approval
for the rezoning and subdivision of the first phase of the
development was subsequently granted. However, the approval
was
granted subject to conditions imposed under section 42 of LUPO
which, in general, entitles the Council to grant applications
of
this kind
"subject
to such conditions as
pt]
may
think fit".
This
matter concerns the meaning, and enforceability, of some of the
conditions which were imposed by the Council, and also some
of the
conditions imposed in respect of the approval of a second
application to rezone and subdivide Oliphantskop further, so
as to
enable phase 2 of the development to proceed,
[7]
So much for a brief outline of the parties and the main point of
contention between them. It is necessary now to examine the
facts in
closer detail.
[8]
Structure pfans are an important town planning and urban devefopment
tool. Section 5 (1) of LUPO provides that a structure
plan
"tay[s]
down guidelines for the future spatial development of the area to
which it relates (including urttan renewal, urban
design or the
preparation of development plans) in such a way as will most
effectively promote the order of the area as well
as the general
welfare of the community concerned."
The
structure plans for the Langebaan/Saldanha Bay area, approved in
terms of section
4
of
LUPO, have since 1992 reflected there to be a road linking the Main
Road 233, which runs into Langebaan from the north east,
with Minor
Road
45,
another
larger road providing access from Langebaan to the town of Saldanha
and from there to towns further up the west coast.
I shall refer to
the proposed road reflected on the structure plan as the link road".
The structure plan shows the fink
road to follow a route directly
across that part of Oliphantskop which the developer intended to
develop. I should mention, at
this point, that the [inking is at
present constituted by the so-called "Leentjiesklip Road"
which runs in a north/south
direction from the MR 233 to the MR
45
more
or less parallel to the edge of Langebaan lagoon.
[9]
The original application for approval to rezone and subdivide
Oliphantskop did not make provision for the possibility that
the
link road contemplated in the structure plan might one day be
constructed. Notice of the application was duly given by the
Municipality to CML, which owned neighbouring property immediately
to the north of Oliphantskop, by way of a letter dated 14
February
2003. It is apparent that the fact that the developer's application
made no provision for the link road was of concern
to CML. A meeting
to address this concern was convened and on
5
March
2003 representatives of the Department of Transport and Public Works
(the sixth respondent in this application), CML, the
Municipality,
and the developer met in Cape Town A minute of the meeting was
subsequently produced. Because the parlies submitted
that the
content of the minute was important I shall quote from it in some
detail. In doing so I refer to those persons who are
referred to in
the minute by referring to the party they represented, rather than
their names. The material portion read as follows:
"
2
.
BACKGROUND
[The
developer] said that the meeting was ananged because of a query from
[CML] that the planning for the Langebaan Country Estate
does not
take his rights (approval for a Subdivisional area) as neighbour
into account The aim of the meeting is therefore to
discuss the
issue and try to find a solution that will benefit both patties and
in doing so facilitate the approval process.
The
roads under discussion are the following:
(a) Existing
Leentjiesklip road/street (Minor Road 45) between Langebaan and Ciub
Mykonos
(b) The
road as shown on both of the Structure Plans for the area, finking
Main Road 233 from the Golf Club House intersection
with Club
Mykonos
(c) Main
Road 559 (partly proclaimed also known as the Ofiphants Kop road.)
3.
DISCUSSION
A
lengthy and detailed discussion followed on each of the roads as
mentioned as well as ail aspects finked to that. The consensus
was
that
Main
Road 559 is the preferred road for access to Club Mykonos. The
following decision was then agreed upon by all parties present:
DECISION
(1)
Saidanha Bay Municipality to formally apply (by mean of a Council
decision) to the Department of Transport
5
Public
Works for the proclamation of the remainder of Main Road 559 that
has not been proclaimed.
(2)
The developer] to supply [CML] with a plan showing:
(a)
The
re-alignment of Minor Road 45 to be partially accommodated in future
on land (north western comer belonging to [the developer].)
(b)
Detail
regarding the section of the link road between Main Road 233 and
Club Mykonos falling within the first phase of
development of the
Langebaan Country Estate.
(3)
[CML]
to provide [the Municipality] with a letter of objection stating:
(a) their
concern regarding the ignorance of the future road linking Main Road
233 with the existing Minor Road 45 to the east
of Club Mykonos, as
included in the section 4 (6) Structure Plans of Langebaan and
Verdenburg-Saidanha and Environment
(b) endorsing
the solution as proposed for the re-alignment of Minor Road 45
through phases 1 and 6 of the proposed development
(Goif Estate) up
to the existing intersection with the MR 233 at the road from the
Goif Cfub House.
(4)
[The developer} to respond to [CML'sj fetter of objection to [the
Municipality}
by stating that
(a) the
link Road between Main Road 233 and Club Mykonos as currently
planned in the Golf Estate is not in line with the approved
Structure Plans as applicable, but will be re-atigned to
accommodate the future link road as indicated in the Structure Plans
(b) the
section of this road within the first phase of the development of
the Langebaan Country Estate conforms to the standards
required for
such a link road should it be implemented in the future."
[10]
On 10 March 2003, as foreshadowed In the minute, CML's town planner
wrote to the Municipality to object to the application
stating that
the application to rezone and subdivide Oliphantskop did not take
account of the link road The relevant portion
of the letter read as
follows:
"We
are acting on behalf of Cfub Mykonos Langebaan Ltd., the registered
owner of erf 2802 Langebaan. The postal address of
our client is
P.O. Box 6140, ROGGEBAAf 8012.
Our
client is not against the development of the Langebaan Golf Estate,
as fong as such development is earned out in a responsible
and
desired manner and without being prejudicial to the existing zoning
rights appficabfe to erf 2802. it is important that afi
interested
and affected parties, the Council and the applicant are not
prejudiced by wrong and inadequate planning decisions.
With this in
mind we would like to raise the following objection.
The
Vredenburg-Safdanha and environment Urban Structure Plan as well as
the Langebaan Local Structure Plan (both approved in terms
of
Section 4(6) of LUPO) indicate a future road finking Main Road 233
from the Golf Club House intersection with Minor Road 45
to the east
of Club Mykonos. The proposed rezoning and subdivision as
advertised, unfortunately do not take cognizance of the
link road as
required in terms of the two structure plans (Attached please find
extracts A and B from these plans showing the
future road). Please
note that the proposed rezoning and subdivision (phase 1} will
affect the southern section of the Mure link
road (Annexure C),
close to the intersection with Main Road 233. After discussions were
held between the applicant, the Department
of Transport & Public
Works and our client on 5 March 2003, we were issued with an amended
plan (Annexure D, Diagram No.358/4000
J - no date) showing a link
road between Minor Road 45 and Main Road 233 and described as
Alternative Route 2, This proposed
road is in line with the
requirements of the 2 Section 4(6) Structure plans and therefore
acceptable to our client. If Council
resotved to support this
proposed link road, our objection will automatically lapse."
[11}
Shortly after this letter was written, and as had been choreographed
at the meeting on 5 March 2003, a response to the objection
was
forthcoming from the developer's town planners. Although the only
copy of this letter available to the Court is extremely
poor it is
possible to discern that it was received by the Municipality on 18
March 2003. It appears to reiterate much of what
was contained in
the minute of the 5 March 2003 meeting. As far as can be made out
the letter confirms that the first stage of
the link road
"should
it be implemented in the future"
would
conform to the required standards, and that the section of the link
road which fell outside of phase 1 of the development
would be
realigned so as to accord with the structure plans. Finally, the
fetter records that CML's objection to the rezoning
and subdivision
application had
"lapsed",
because
a revised subdivision plan reflecting the link road was acceptable
to CML.
[12]
On 29 April 2003 the Municipality wrote to notify the devefoper that
its application for rezoning and subdivision approval
had been
conditionally granted by the council. At this stage it is sufficient
to refer to conditions (c) and (e) of the approval,
the latter
incorporating a condition described as Special Development
Condition: Civil 11.
[13]
Condition (c) provided as follows:
"that
a revised subdivision plan for Phase 1 be submitted to the
satisfaction of the Chief: Town Planning and
Building
Control that indicates the proposed linking of Main Road 233 from
the Golf Club House intersection with Minor Road 45
to the east of
Club Mykonos;".
[14]
Condition (e) provided that
"all
detail must be in accordance with the Engineer's Conditions"
attached
to the approval as an annexure, Clause 11 of the Engineer's
conditions related to the link road. It read as follows:
"Council
concurs with the objection of Club Mykonos Langebaan Limited to the
ohginal layout not making provision for a suitable
link road for the
area to the north of the development with the area to the south of
the development. As Club Mykonos has done.
Council withdraws its
objection provided that the layout is altered to make provision for
a north/south link road as per the
"Amended Plan received from
Warren Simpson and Partners" dated 10 March 2003. The approved
arterial link road is shown
in bold on Annexure "E". This
proposed link road shall run from the existing bend on Provincial
Road DR45 adjacent
to erf 4895 south towards the existing Langebaan
Country Club and meeting Provincial Road MR233 at the existing
access to the
Country Club. This artehal link road shall have a road
reserve width of at least 25 metres.
It
is advisable that the number of roads within this development which
mil intersect with this proposed arterial road should be
restricted.
The
spacing of ail proposed access roads from this proposed artenaf road
shall be in accordance with the standards contained in
the
Provincial Guidelines on access roads."
[15]
It must be mentioned that the
"amended
plan received from Warren Simpson and Partners dated 10 March 2003"
referred
to in condition 11, reflected the link road to run across the whole
of Oliphantskop from the MR 233 to its northern boundary.
[16]
A revised subdivision plan as contemplated in condition (c) was
prepared on behalf of the developer. This plan, a
copy
of
which was annexed to the replying affidavits marked "PC56
H
f
was to the satisfaction of the appropriate official and certified
thus
on
1 May 2003, Although the plan was the subject of much debate about
its import and meaning it speaks for itself. It is'simply
a
subdivision plan, and it shows what it shows - nothing more and
nothing less. I shall endeavour, in words, to adequately describe
what is so much better shown by the plan itself.
[17]
The plan shows the boundaries of the southern portion of a road in
the position of the link road, where it intersects with
the MR 233
at the Golf Club house intersection. It can be calculated from the
scale that the plan reflects the road to be 25
metres wide. The part
of the road reflected on the plan is adjacent to phase 1 of the
development - it goes no further north.
The road reflected on the
plan is zoned transport zone, the same zoning description given to
that part of Main Road 233 also
shown on the plan. In terms of the
Langebaan Scheme Regulations made in terms of section 7 of LUPO the
primary use of a transport
zone is as a public road. And the road
depicted on the plan is allocated a separate erf number, namely erf
6968. Because this
was a point of contention between the parties it
must be mentioned that what the plan does not show is the entire
length of the
link road referred to in the structure plans.
[18]
A month or so later, on or about 6 June 2003, the developer made
application to the Municipality for the rezoning and subdivision
of
Phase 2 of the development. It included in its second application a
tract of land which had not formerly formed part of Phase
2 (the
developer had intended to develop this piece of land in phase 6) but
which also lay to the west of the link road reflected
on the
structure pfan. The development of the additional piece of land was
described as Phase 2A. Thus Phases 1 and
2
(Phase
2 now including 2A) related to ail of Oltphantskop which lay to the
west of the link road, and these phases connected the
southern
boundary of Oliphantskop adjacent to the MR 233 with its northern
boundary, near to the southern end of the MR 45.
[19]
The application for rezoning and subdivision of Phase 2 and Phase 2A
contained some detail of the proposed development. The
application
document for Phase 2 stated that
"This
northern pari of the golf course wilt also be secured once the issue
regarding the Mykonos/ Oliphantskop road has been
resolved.
Construction on the first part of the link road from MR 233 to
Mykonos that fatls within the Estate has already started
and this
road is being built to the standard as prescribed in the Langebaan
Structure Plan." To
understand
fully the relevance of the first sentence of the above quoted
portion of the application it is necessary to point out
that it is
apparent from the application document that what the developer had
intended was an estate
"secured
by means of a 24-hour secuhty service, security fences as well as
controlled access gates".
It
is clear from an examination of the original plan relating to the
Phase 1 application for rezoning and subdivision approval
that what
had originally been intended was a private, fenced and secured
estate, with controlled access points. The original
concept entailed
the entire northern boundary of the development being closed off. It
will be appreciated that the route of the
link road reflected on the
structure plan (which, if it was to be constructed, would be a
public road) cuts through the development,
and complicates securing
the estate in the manner originally intended by the developer
[20]
The phase 2A application document described the reason for the
application to rezone and subdivide as follows:
This
motivation is for the extension of the second phase in that the
design for the fink road from Main Road 233 (from the Cfub
House)
with Minor Road 45 to the east of Cfub Mykonos (as per the Structure
Plans) has been finalized and this extension serves
to consolidate
all development west of the said link road."The
phase
2A application included a preliminary site layout plan which shows
the entire length of the link road, from the MR 233 in
the south, to
the northern boundary of Oliphantskop.
[21]
The appfication to rezone and subdivide Phases 2 and 2A also
elicited an objection from CML On 10 June 2003 CML's town planners
wrote to object to the application, stating:
"We
would like to referyou to our letter dated 10 March 2003, ret
1.172/03019 re the important future link road through phase
1. The
only access to your proposed phase 2 (Woftemade) is a road
connecting with the above north-south major link road. In par
7.1 of
the motivational report received from CK Rumboll and Partners
[the
developer's town planners],
reference
is made to the fencing off of the northern section of the proposed
Estate (consisting of phases 1,2 and 6) with a security
access point
opposite the existing entrance to the club house. According to the
report all roads within the Estate will be private
roads.
On
behalf of our client we object against the proposed securing and
privatization of the future link road between Minor Road 45
and Main
Road 233. No alternative link road has yet been proclaimed and
built, and until this alternative future road has been
proclaimed
and constructed, the major north-south fink road through phase 1 may
not be privatized and/or closed for the general
public."
[22]
On 27 May 2004 the developer was notified that its appfication for
rezoning and subdivision approval for Phase 2 was approved
by the
Municipality. Again, the approval was subject to conditions.
Condition (c) was relevant to the link road and it provided,
in much
the same way as had phase 1 condition (c)
t
as follows:
"that
the proposed subdivision plan for phase 2 be approved inclusive of
the linking of Main Road 233 from the Golf Club
House intersection
with minor road 45 to the east of Cfub Mykonos."
Condition
(d) incorporated the Engineer's conditions and condition 11 was in
identical terms to that imposed in respect of the
phase 1
application.
[23]
The subdivision pfan referred to in the Phase 2 condition (c)
approval was not the same as the preliminary site layout plan
which
had accompanied the Phase 2 application. The latter plan had
reflected the link road extending from the MR 233 all the
way to the
northern border of Oliphantskop. As was the case with the phase 1
"revised
subdivision pfan"
the
approved plan did not reflect the link road at alf.
[24]
Development in the area was proceeding apace and on 16 May 2005 CML,
which had applied to the Municipality for permission
to subdivide
its own land which lay immediately to the north of Oliphantskop.
CML's application was approved by the Municipality.
This approval
was conditional upon,
inter
alia
t
CML
extending the Minor Road 45 to the northern border of Oliphantskop,
in a position where it would join with the link road reflected
on
the structure plans.
The
extension to MR 45 was physically completed by December 2005. Thus
the southern part of the link road, intersecting with the
MR233 at
the Golf Club house intersection and adjacent to Phase 1 of the
Langebaan Country Estate development, was in place.
Furthermore, the
MR 45 had been extended by CML in compliance with the condition
imposed in respect of its subdivision application,
in a southerly
direction to meet with the northern boundary of Oliphantskop.
[25]
The District Roads Engineer was also involved in the extension of
the MR 45 in a southerly direction to the northern boundary
of
Oliphantskop. He had written, on 6 May 2005, to CML's engineers
about the extension of the MR 45 and in a postscript to that
fetter,
copied to the Municipality, confirmed that the Municipality
"would
do everything in its power to expedite extension of Minor Road 45
and through the Langebaan Country Estate".
That
this was the desired objective of the Municipality is evident from
the terms of a letter it had written on 5 May 2005 to
the District
Roads Engineer. In this letter the Municipality stated that the
approved structure plans had made provision for
the link road to be
extended through the Langebaan Country Estate; that with the
development in the Langebaan/Mykonos area the
construction of the
link road had become a reality; that the construction of the road
was being undertaken by two developers,
namely CML and the developer
(that is, the first respondent); and that CML were busy with the
construction of its portion of
the link road; and the developer was
in the process of obtaining environmental impact approval before its
portion of the link
road woufd also be built. It is evident that the
scene had been set for the possible construction of the link road,
following
a route through the Langebaan Country Estate, as the
structure plans has envisaged.
[26]
During July 2005 Withers Environmental Consultants, having been
appointed by the Municipality, commenced work on an environmental
impact assessment relating to the link road over Oliphantskop It is
unclear how far their work progressed. It is obvious that
it was
CML's frustration with what it believed to be tardy progress towards
the realisation of the link road that caused it to
write to the
Municipality on 7 August 2006 to ask whether the developer or the
Municipality were to build the road. No answer
to this letter was
h
or has been, forthcoming. The environmental assessment process
referred to above came to a standstill shortly after this
application
was launched in September 2006, after the developer's
attorneys had written to the consultants to suggest that it be
stopped.
Nothing further in regard to the possible construction of
the link road has happened. In short, matters ground to a halt.
[27]
These are the important facts. To determine whether or not phase 1
condition (c), read with clause 11 of the civil conditions,
and
phase 2 condition (c), read with the same civil condition clause
have been complied with by the developer, one must first
establish
what the conditions required. It is this question which lies at the
heart of the dispute between the parties.
[28]
CML's claim for declaratory relief began as one based upon an
interpretation of the conditions as a whole which, so its counsel
argued, imposed upon the developer, or the Municipality, or both of
them, an obligation actually to construct the link road.
Once it
became obvious that this argument would not hold water CML changed
tack. In the end the substance of the primary declaratory
relief
claimed by CML was an order declaring that in terms of the
conditions (taken as a whole) the developer was
"required
in terms of the conditions of subdivision,,.to make provision for
the creation and construction of the link road"
and
to this was coupled a prayer for an order directing, inter alia, the
developer to submit revised subdivision plans for phase
1 and phase
2 which included a depiction of the entire length of the link road,
and the other detail set forth in civil condition
11. The developer
and the Municipality argued that the conditions did not require the
entire length of the road to be reflected
on the subdivision plans
and, they contended, the plans which had been submitted by the
developer did comply with the conditions.
[29]
The developer contended, in the alternative, that if the conditions
were interpreted in such as way so as to amount to a
vesting of land
in the Municipality this would result in there being an unlawful
expropriation of the developer's property without
compensation. The
conditions, interpreted in this manner, would be
ultra
vires
the
powers accorded to the Council to impose conditions under section 42
(2) of LUPO. The
ultra
vires
point
was relevant it was argued, firstly, because it pointed against an
interpretation of the conditions which had this result,
and
secondly, because the Court could not order compliance with an
invalid condition, In regard to the second leg of the
ultra
vires
argument
the developer contended that it was entitled, notwithstanding that
the validity of the conditions were not in issue in
these
proceedings, to mount a collateral challenge to their validity.
[30]
An interpretation of the conditions in the manner contended for by
CML had, according to it, far-reaching implications, such
as the
automatic vesting of the developer's land in the Municipality. In
order to understand the argument it is necessary to
examine how
subdivisions come to be in terms of LUPO.
(31)
Section 23 (1) of LUPO provides that land can only lawfully be
subdivided once an application under section 25 (1) has been
granted. Section 26 provides that once an application to subdivide
land has been granted
"the
owner of the land concerned shalf submit a general plan or diagram,
as indicated by the Surveyor-General concerned,
to that Surveyor-
General for his approval."
[32]
Section 27 of LUPO governs what happens after the general plan or
diagram referred to in section 26 has been approved by
the
Surveyor-General, in summary, once the requirements listed in
section 27 (1) have been complied with in such a manner that
the
subdivision approval granted under section 25 cannot lapse, the
subdivision is regarded to be
"confirmed".
[33]
On confirmation of the subdivision the provisions of section 28
become relevant. Section 28 provides
"The
ownership of ati public streets and public places over or on land
indicated as such at the granting of an application
for subdivision
under section 25 shall, after confirmation of such subdivision or
part thereof, vest in the local authority in
whose area of
jurisdiction that land is situated, without compensation by the
local authority concerned if the provision of the
said streets and
public places is based on the normal need therefore arising from the
said subdivision oris in accordance with
a policy determined by the
Administrator from time to time, regard being had to such need."
[34]
CML contended that the provisions of section 28 of LUPO had the
result that the southern portion of the link road reflected
on the
phase 1 revised subdivision plan vested in the Municipality. Had the
entire length of the link road been reflected on
the subdivision
plans the entire length of the link road would have vested in the
Municipality as opposed to simply the southern
portion of the link
road adjacent to phase 1 of the development. This would, so the
argument went, have considerably facilitated
the process by which a
final decision to construct the link road would have been made,
which is what CML's ultimate objective
was.
[35]
But it is clear that the operation of Section 28 does not inevitably
lead to an automatic vesting. It is only
"..if
the provision of the said public streets...is based on the normal
need therefore arising from the said subdivision,
oris in accordance
with a policy determined by the Administrator from time to time,
regard being had to such need"
that
a vesting occurs. Whether or not the link road was
"...based
on the normal need therefore arising from the said subdivision..."
was
not an issue pertinently addressed in the evidence placed before the
Court on affidavit in this matter and to make a finding
in this
regard would invoive an unacceptable measure of speculation. \
should add that CML also contended that the structure
plans amounted
to a policy determined by the Administrator, but there was no
evidence In the papers of there being such a policy
and its
contentions in this regard are without merit.
[36]
As I have intimated above, section 42 of LUPO empowered the Council
to impose conditions when granting an application for
rezoning and
subdivision. Stripped of provisions irreievant to this case the
section reads as follows:
"42(1)
When ... a council grants... an application ... under this
Ordinance,
[it]
may
do so subject to such conditions as
[it]
may
think fit; 42(2) Such conditions may, having regard to -
(a)
the community needs and public expenditure which in ... its opinion
may arise from the...application... concerned and the
public
expenditure incurred in the past which in... its opinion facilitates
the said ...application..., and
(b)
the various rates and levies paid in the past or to be paid in the
future by the owner of the land concerned,
include
conditions in relation to the cession of iand or the payment of
money which is directly related to requirements resulting
from the
said...application...in respect of the provision of necessary
services or amenities to the iand concerned."
Counsel
for the developer argued that if the conditions which required the
revised subdivision diagram to show the Jink road had
the result
that such land vested in the Municipality under section 28, or in
any other way becomes owned by it
p
then they were
ultra
vires
the
powers of the Council. Relying on
South
Peninsula Municipality and Another v Mafherbe NO and Others
1999
(2) SA 966
(CPD) it was submitted that the Council could only impose
conditions which had this result - a taking of land by the
Municipality
without compensation to the owner - in the exercise of
its powers under section 42 (2) of LUPO. And under section 42 (2),
as
t understood the argument, the
"...cession
of land..."
inherent
in the vesting had to
"directly
relate to the requirements resulting from
[the
rezoning and subdivision approvals]
in
respect of necessary services or amenities to the land concerned.
"The
need for such a road had been anticipated when the structure plans
were first produced and it could not be said that
such a need arose
from the approvals. It followed, it was argued, that a condition
with the meaning contended for by CML had
the effect of depriving
the developer of its rights in the land and it could thus not
validly be imposed.
[37]
I have some doubt whether a vesting of
"public
streets or public places"
which
is the automatic legal consequence of the confirmation of a
subdivision can be equated to a condition requiring a
"cession
of land"
imposed
under section 42 (2) of LUPO, or with the kind of cession of land
which was the subject of the decision in the
South
Peninsula Municipality
case.
Sections 28 and 42 (2) of LUPO are different in language and
unrelated in purpose (see the analysis of the two sections
in the
minority judgment in
City
of Cape Town v Heiderberg Park Development (Pty) Ltd
(291/07)
[2008] ZASCA 79
(2 June 2008) at paragraph 45). Land which is
indicated as public streets or public places
"at
the granting of an application for subdivision under section 25"
vests
automatically in the Municipality under section 28 only if the
provision for the public streets and public places is based
on the
normaf need therefor arising from the subdivision. Section 28
envisages a situation, as I understand it, where the owner
of the
parent erf applying for subdivision (that is, before the application
is considered by the Council) contemplates that it
will be necessary
that part of the parent erf be used as public streets and public
places and thus submits to the automatic legal
consequence of
vesting upon the confirmation of the subdivision. This is not the
same, as I see it, as a condition imposed after
the application has
been considered by the council which requires a cession of land to
the Municipality where all the different
factors referred to in
section 42 (2) of LUPO, such as the needs of the community, public
expenditure, the rates and levies paid
in the past, or to be paid in
the future, have been considered.
[38]
8ut even if the conditions were invalidly imposed I do not see how
this will avail the developer in this matter, it is settled
law that
administrative decisions stand until they are set aside by a Court,
and outside of direct review proceedings the circumstances
in which
a party may indirectly or collaterally challenge the validity of
administrative action are narrow (see
Oudekraa!
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) at 244C - 244D;
V
& A Waterfront Properties v Helicopter and Marine Services
2006
(1) SA 252
(SCA) at 255F). in
Oudekraai
it
was said, quoting with approval from the decision of Conradie J. in
Metal
and Electrical Workers Union of SA v National Panasonic (Parow
Factory)
1991
(2) SA 527
(C) at 530 C-D, that
"a
collateral challenge to the validity of the administrative act wiff
be available, in other words, only 'if the right remedy
is sought by
the right person in the right proceedings'."
Generally,
this is where an administrative authority seeks to enforce an
invalid act against the party challenging the validity
of that act.
[39]
In
Helderberg
Park Development
the
majority held (following the line of reasoning expressed in
Administrator
Cape Province v Ruyteplaats Estates (Pty) Ltd
1952
(1) SA 541
(A)
amBeiinco
(Pty) Ltd v Beilville Municipality
1970
(4) SA 589
(A)) that the imposition of a condition requiring a piece
of (and to
"be
given off free of charge before any sub-divisionai pian will be
approved"
did
not amount to an expropriation without compensation because the
owner need not have accepted such a condition, and because
his
freedom of choice in deciding not to challenge the imposition of
such a condition had not been interfered with to the degree
that it
could be said that he had not enjoyed a real freedom to choose. In
Helderberg
Park Development
the
Court concluded that the applicant in that case, which had accepted
the condition referred to above, wanted
"to
take the benefits of the unlawful decision whilst being freed from
the obligations flowing from it".
The
court concluded that
"(t)his
is something that public or legal policy considerations cannot
contemplate/'
The
position of the developer in this case is strikingly similar. It has
reaped all of the benefits flowing from the permission
granted to it
by the Council to rezone and subdivide its land. Its land has been
developed and much of it sold off. For it now
to seek to avoid
obligations on account of their having been irtvafidly imposed seems
to me to be impermissible
[40]
Furthermore, the form in which this matter was brought does not
facilitate a challenge to the validity of the conditions.
In these
proceedings there was no
lis
between
the developer and the Municipality. They are both respondents.
Issues which may be relevant to the validity of the conditions
have
thus not been properly addressed in the evidence and, as I have
already intimated, to make findings about the validity of
the
conditions, an exercise which involves examining whether the
different requirements of section 28 and/or section 42(2) of
LUPO
have been complied with, will involve too large a degree of
speculation for such findings to be reliable. It is plainly
unwise
to fish in a sea of evidence put before a Court by the parties for
the purpose of resolving one issue, in the hope of
finding
evidential material which answers another issue.
[41]
I
therefore
conclude
that this is not a matter where
"the
right remedy is sought by the right person in the right
proceedings."
In
these proceedings it is not open to the developer to contend that
the conditions in question were
ultra
vires
the
powers conferred on the Council by LUPO, and thereby avoid having to
comply with them.
[42]
It was submitted by counsel for the parties that in construing the
conditions I should follow the technique summarized by
Joubert J.A.
in
Coopers
and Lybrand v Bryant
[1995] ZASCA 64
;
1995
(3) SA 761
(A) at 767 D to 768 E and described in some detail in
Christie
Law
of Contract in South Africa
(5
,fl
edition). In the
Coopers
and Lybrand
matter
Joubert J A put it as follows:
"According
to the 'golden rule' of interpretation 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 instrument...The
mode of construction should
never be to interpret the particular word or phrase in isolation (in
vacuo) by itself...The correct
approach to the application of the
'golden rule'of interpretation after having ascertained the literal
meaning of the word or
phrase in question is, broadly speaking, to
have regard: (1) to the context in which the word or phrase is used
with its interrelation
to the contract...;
to
the background circumstances which explain the genesis and purpose
of the contract, ie to matters probably present to the
minds of the
parties when they contracted...;
to
apply extrinsic evidence regarding the surrounding circumstances
when the language of the document is on the face of it ambiguous,
by considering previous negotiations and correspondence between the
parties, subsequent conduct of the parties showing the
sense in
which they acted on the document, save direct evidence of their own
intentions ".
[43]
It must be borne in mind that in the
Coopers
and Lybrand
matter
the Court was concerned with the interpretation of a document
evidencing a bilateral juristic act, namely an agreement
to cede
book debts. The imposition by the Council of the conditions in
question was not the recording of an agreement, but a
unilateraf
administrative act. There are
h
of course, aspects of the approval process which resemble Hie
process of concluding a contract. Thus in
Estate
Breet v Pen-Urban Areas Health Board
1955
(3) SA 523
(A) at 531C-E it was said that
"there
is authority and reason for holding that the steps by which a
township is established...involve mutual consent between
the
Administrator and the applicant as to the township conditions, and
the Administrator may be regarded, not inappropriately,
as making an
offer to the applicant which the latter must accept if a township is
to be brought into existence".
That
case, however, was about prescription and did not concern the
question of the interpretation of such conditions. Once they
are
imposed the conditions acquire the force of faw, because section 39
of LUPO compels both the focal authority and afl other
persons to
comply with them (cf. the separate assenting judgment of Centlivres
C.J. in
Estate
Breet
at
525B-D). it is
p
as I see it, what was intended by the Council that matters, not what
was intended by the developer or by CML. Thus, whilst the
discussions which took place before the conditions were imposed
place the imposition of the conditions in context, limited, if
any,
assistance in interpreting them can be had by having regard to the
conduct of the parties. What CML and the developer actually
did
after the approvals had been granted, whilst it may be evidence of
what those parties believed the conditions to mean, cannot
be useful
in determining what the intention of the Council was when it imposed
the conditions. To this I must add that because
direct evidence of a
party's own intention may not be had regard to, to have regard to
what officials in the employ of the Municipality
now say they
thought the conditions meant (to the extent
that
they
may speak for the Council) is not permissible.
[44j
It is apparent from civil condition 11 that the Council itself
considered with disfavour the failure of the original phase
1
application to take account of the link road and that it required
recognition to be given to the structure plans, which reflected
the
link road. The condition stated expressly that the Council agreed
with CML that the subdivision- plan should show the link
road. The
structure pfan is an important town planning guide, ft informs urban
and town planning and the orderly development
of towns, so often
achieved by way of the rezoning and subdivision of land. It seems to
me that the conditions were imposed precisely
because the structure
plan reflected the link road Furthermore, the officials who deposed
to affidavits on behalf of the Municipality
have made it clear that
the Municipality desires the road actually to be built, and the
Municipality has taken some steps to
bring this to fruition. It
follows, in my view, that the Council is unlikely to have meant for
only a part of the link road to
be reflected on the revised
subdivision plan, as counsel for developer, and the Municipality,
contended. What use would that
have served? What had to be reflected
on the revised plan was
"the
proposed finking of main road 233 from the golf clubhouse
intersection
[at
the south end of Oliphantskop]
with
the minor road 45 to the east of Club Mykonos
[at
the northern boundary of Oliphantskop]". On the face of it the
plain meaning of the words used indicate a reference to
the whole
length of the fink road. The part of the road actually reflected on
the diagram submitted is not a link, because it
links, or connects,
nothing. For a link road to be reflected on a plan one must
necessarily indicate the two places being linked,
and show the route
of the road linking those places. The road reflected on the amended
subdivision plan submitted by the developer
in purported compliance
with the condition is a
cuf
de sac
providing
only access to the development itself. And the same reasoning, as I
see it, applies to phase 2 condition (c).
[45]
The developer and the Municipality argued that it would be unusual
to require the subdivision plan to reflect detail not
directly
relating to phase 1 or to phase 2. However, in the exercise of its
power to impose conditions nothing prevented the
Council from
requiring the whole length of the link road to be reflected,
notwithstanding that part of the link road fell outside
of the
borders of phase 1, or of phase 2. Indeed, to reflect only a part of
the link would have been more unusual, if one takes
account of the
factors outlined above. Moreover, that the whole length of the road
was meant to be reflected seems to have been
accepted by the
developer in its letter written
in
response
to the original objection made by CML where it stated that the
section of the link road which fell outside of the phase
1 approvals
would be realigned so as to accord with the structure plans.
[46]
In my view, then, phase 1 condition (c) and phase 2 condition (c),
read with civil condition 11, required the subdivision
plans to
reflect the entire length of the link road. 1 think that one can
arrive at this conclusion by having regard to the plain
words
employed by the framers of the condition without it being necessary
to rely to any material degree on other tools of interpretation.
This interpretation may or may not have the result of vesting the
road in the Municipality in terms of section 28 or, perhaps,
under
section 42 (2) of LUPO, depending on whether the requirements of
those sections were fulfilled. However, these are not
questions
which the Court can decide in this matter, and as I have said, I
make no findings in this regard. What is clear is
that the
conditions, construed in this manner, have not been complied with.
[47]
Uncertainty concerning
the
meaning
of the conditions lies at the heart of this dispute. It is afso
apparent that the imposition of these conditions was central
to the
approval - indeed they comprise virtually the only "non-standard"
condition imposed by the Council. The conditions
in question did not
impose an immaterial or insignificant obligation on the developer.
They were important and had to be complied
with. That the
legislature intended that compliance with conditions imposed by a
Council when approving a rezoning or subdivision
application is
essential and imperative is underscored by the fact that a failure
so to comply is a criminal offence in terms
of section 41 of LUPO.
[48]
The primary relief sought was declaratory in nature, and the Court
could only make a finding about the second or enforcement
issue once
it had determined the first declaratory issue. In
Luzon
Investments (Pty) Ltd v Strand Municipality and Another
1990 (1) SA
215
(CPD)
at
230A the full bench (Friedman, Howie and Conradie JJ.) quoted with
approval from a decision of the Supreme Court of Canada
in
Soiosky
v The Queen
105
DLR (3d) 745 at 754 where it was held that
declaratory
relief is a remedy neither constrained by form nor bounded by
substantive content, which avails persons sharing a
legal
relationship, in respect of which a 'real issue' concerning the
relative interests of each has been raised and falls to
be
determined".
In
Luzon
Investments,
where
a
"live
and real issue between the parties"
had
been fulfy canvassed in evidence and in argument it was found to be
appropriate that an order which settled the dispute between
the
parties be made in terms of the prayer for alternative relief.
[49]
in this case, as I see it, similar considerations apply. As will
have appeared from the facts outlined above a curious state
of
affairs has come to exist. The Municipality wants the link road to
be built. Undoubtedly, it has concluded that it is in the
interests
of the community that this be done. The Provincial Roads Engineer
also wants the road to be built. CML has extended
the MR45
southwards to the boundary of the Langebaan Country Estate so that
the road can be built. The developer has built the
southern part of
what might become the link road and has on its own version provided
what it terms a corridor of land through
the estate for the link
road to be built, once a final decision to do this is taken. In its
application for the phase 2 approval
the developer stated that
"[construction
on the first pari of the link road from MR 233 to Mykonos that falls
within the Estate has already started
and this road is being built
to the standard as prescribed in the Langebaan Structure Plan"
and
in
the phase 2A application it stated that the design for the link road
had been finalized. Yet for years nothing has happened.
The process
by which a decision should be taken whether or to not build the road
has stalled because the meaning of the conditions
has become the
subject matter of a dispute.
[50]
The real issue between the parties is what the conditions mean and
it is to take too narrow a view of the Court's function
and powers
in regard to the resolution of disputes, particularly where the
exercise of public law rights and the performance
of public law
duties are In issue, to avoid that issue because the declaratory
relief initially sought had been unwisely formulated.
CML, the
developer and the Municipality are all interested parties upon whom
a declaratory order will be binding. Moreover, the
Municipality has
a duty to the public it serves to enforce the conditions imposed and
it is plainly desirable that any lack of
clarity about their import
and meaning is resolved. The depiction of the whole of the link road
on the subdivision plan is of
tangible utility to the parties in
that it will give physical form, where none presently exists, to
what was required when the
conditions were imposed. It is therefore
appropriate in my view, that a declaratory order, coupled with an
enforcement order,
be made.
[51]
CML sought to persuade me that a number of other conditions imposed
by the Council in regard to both the phase 1 and 2 approvals
were
related to the link road, and that to progress the process by which
the road might be made a reality I should order that
they be
complied with. Because I have concluded that they were not intended
directly to relate to the link road I do not propose
to deal with
them in great detail. Special condition 24 required the developer to
transfer ownership of all public roads and
public open spaces to the
Municipality; Conditions (o) and (t) required the approval of the
Provincial Roads Engineer before
roads were built, and for a copy of
an agreement between that official and the developer to be submitted
to the Municipality;
and condition (gg) required environmental
approval for the development to be obtained. It was argued that
compliance with these
provisions were "building blocks
1
'
and that for the link road obligation to be fuffilied in its
entirety all of the so-called buifding blocks needed to be in place.
[52]
I do not think that in imposing the obligations referred to in the
previous paragraph the Council had regard to the link
road. The
evidence was that the conditions were standard, or generic ones, and
there are no facts to suggest that their imposition
was in any way
connected to the link road, or its possible creation. In many
respects these conditions simply echo obligations
imposed by other
town planning and environmental laws in respect of all aspects of
the development. Similarly, that the Municipality
engaged
environmental consultants in July 2005 to commence an assessment of
the desirability of the link road is no more connected
to the
conditions it imposed in approving the subdivision than the fact
that it caused CML to extend the MR 45 to the northern
boundary of
Oliphantskop when it imposed conditions relating to an unrelated CML
subdivision application. These facts merely
confirm that the
Municipality regard the road to be desirable, and that it had
initiated the process of making the link road
a "reality,"
1
to use the word used in its own correspondence to which I have
referred in paragraph 24 above. The decision of the Municipality
to
initiate the process to have the road [possibly) constructed did not
flow from its approval of the developer's rezoning and
subdivision
application. It was a decision independently taken and is unrelated
to the conditions it imposed upon the developer.
Whether or not the
road is necessary, and in the interests of the community, is not a
matter upon which a Court can pronounce,
and I am satisfied that it
would not be correct for me to order compliance with these
conditions, with a view, at least, that
such compliance might
eventuate
in the
link
road being butlt. This should not be understood to mean that these
conditions need not be complied with. It means simply
that they are
not sufficiently connected to the primary declaratory relief sought
for it to be necessary or desirable to order
compliance with them in
this application.
[53]
CML also sought an order directing the Municipality to do all things
necessary to enforce compliance with the conditions
imposed by
Council in order to make provision for the link road. It based its
entitlement to such an order primarily on the provisions
of section
39 (1) (c) of LUPO, the material part of which provides as follows:
"39
(1) Every focal authority shall comply and enforce compliance with
-...(c) conditions imposed in tenvsofthis Ordinance...
and shall not
do anything the effect of which is in conflict with the intention of
this subsection."
[54]
it is well established in our law that a
mandamus
is
available to compel an administrative organ to perform a statutory
duty. However, counsel for the Municipality contended that
to order
the Municipality to enforce any condition was unnecessary, firstly,
because there was no evidence to suggest that it
would not do so and
thus no need for it to be compelled to perform its duty. Its
failure, as I understood the argument, not to
enforce conditions
whfch it may be found not to have enforced was attributable to it
having a different understanding of the
meaning of such conditions,
and not attributable to an unwillingness on its part to perform a
statutory duty. Secondly, so the
argument went, if the developer was
ordered to comply with a particular condition by the Court, then it
would not be necessary
to order the Municipality to enforce
compliance. In this regard reliance was had on a statement in the
majority judgment in
Continental
Landgoed (Pty) Ltd v Bethatrand
1977
(3) SA 169
(T) where it was said that
"[djit
sou inderdaad 'n vreemde foestand wees as A 'n mandamus teen B moei
verkry waardeur B verplig word om aksie teen C
in te stef ten einde
reg te laat geskied teenoorA. Die normale manier is dat die
reghebbende dit self doen en nie eers "n
agent dwing om dit
namens home te doen
n/e.'(at
170H - 171 A).
[55]
The
Continental
Landgoed
case
referred to was an appeal to a full bench of a Provincial Division
against a refusal by the Court a
quo
to
order a township owner to comply with conditions imposed in respect
of the development of that township The applicant in the
Court a
quo,
the
purchaser of subdivided land in the township, had not sought any
relief against the local authority in that matter. In this
matter
relief is sought against the local authority and the statement
relied upon by counsel for the Municipality is thus not
binding
authority, in my view, for the proposition that a Court lacks the
power to order the developer to comply with the conditions
imposed
by the Council and simultaneously to order the Municipality to
enforce compliance with such conditions.
[56]
LUPO confers upon the Municipality weapons to enforce compliance
with conditions imposed by the Council which are not at
the disposal
of a Court. Section 31 (1) of LUPO, edited of unnecessary verbiage,
provides that before registration of subdivided
land by the
Registrar of Deeds is effected
"the
transferor shall furnish proof to the local authority concerned that
any condition on which the application for subdivision
concerned was
granted, has been complied with and no written authority under
section 96 (1) of the Municipal Ordinance, 1974
(Ordinance No. 20 of
1974), orsection 96 (1) of the Divisional Councils Ordinance, 1976
(Ordinance No. 18 of 1976) shall be issued.unless
such proof has
been furnished."
The
"written
authority"
contemplated
in the Ordinance are the so-called rates clearance certificates now
governed by the provisions of section 118 of
the successor to the
Ordinances referred to, the
Local Government: Municipal Systems Act,
32 of 2000
.
[57]
The provisions of
section 36
(1) of LUPO were repeated in civil
condition 8 which was imposed by the Council when it granted
approval to the developer for
the rezoning and subdivision of
Oliphantskop. The pertinent part of this condition provided that
"Before
any application for clearance certificates may be considered ... all
conditions as stipulated by...Council...must
already have been
completed and/or provided."
It
is thus within the power of the Municipality to prevent the
developer from transferring subdivided land until it has complied
with all conditions imposed by the Council by not issuing clearance
certificates until such conditions have been complied with.
Indeed,
it is its duty to do this Plainly, the coercive measure afforded to
the Municipality is an effective and practical tool
by which
compliance with conditions imposed by the Council must be enforced.
It is a measure which has not been employed, with
the result that
notwithstanding non-compliance by the developer with condition (c)
of the phase 1 and phase 2 approvals, the
Langebaan Country Estate,
a significant housing development on the outskirts of Langebaan, now
exists.
[58]
In the circumstances I do not think that is an unnecessary or
undesirable duplication of a remedy if I were to order the
Municipality to do what LUPO, and the conditions imposed by its
Council, require of it. The Municipality is obliged to enforce
compliance with the conditions, and it has available to it unique
and effective tools to achieve such compliance, which go beyond
the
powers of the Court.
|59]
Before concluding it is necessary to deal with a number of
preliminary matters which engaged the parties and the Court when
the
matter was heard on 6 and 7 June 2007. At that hearing CML made
application for condonation of the late filing of its replying
affidavits (this was done because the Municipality insisted that it
do so and would not agree to receive the replying affidavits
out of
time) and for leave to amend the relief it originally sought. The
condonation application was opposed only by the Municipality.
The
application for leave to amend the relief sought was inextricably
linked to applications made by both the developer and the
Municipality to strike out much of the material contained in the
replying affidavits', principally on the ground that new matter
had
been introduced in reply to support a new case not made out in the
founding affidavit.
[60]
I shall first deal with the condonation application. In terms of an
order made by agreement between Hie parties on
11
October
2006 the developer and the Municipality were to file answering
affidavits by 10 November 2006, and replying affidavits
were to be
filed by 11 December 2006. The matter was postponed for hearing on
the semi-urgent roll to
13
February
2007. In the event, the Municipality filed its answering affidavits
on 22 November 2006, and the developer filed its
answering
affidavits on 7 December 2006 On 12 January 2007 an order was made
by the agreement of the parties which required,
inter
alia,
that
the replying affidavits be filed by 13 March 2007 and postponing the
matter for hearing until June 2007. The replying affidavits
were
eventually filed on 30 April 2007.
[61]
CML contended that it had been impossible to reply to the answering
affidavits by 1
1
December
2007, because these had been filed late. It was not in dispute that
CML's expert witness had not been availabfe over
the
December/January holiday period; that responses to
Rule 35
notices
requiring the production of documents had not been timeously
complied with; that CML had had to engage other counsel
as the
counsel initially briefed was unavailable; and that it had
underestimated the amount of work required to finalise the
reply. In
an answering affidavit the Municipal Engineer Civil Services in the
employ of the Municipality stated that
a
{a]ny
person with any experience in property development and the building
and closing of public roads knows that they are involved
processes".
I
do not think that he can be accused of having understated the
position. It is quite apparent that considerable work went into
the
production of the replying affidavits and I am satisfied that good
cause has been shown and that there was no prejudice to
the
Municipality should the late filing of the replying affidavits be
permitted. I therefore permitted the fate filing of the
replying
affidavits, in my view it was unreasonable for the Municipality to
have opposed the application.
[62]
The application for leave to amend the relief sought constituted a
substantial shift away from CML's original assertion that
the
conditions imposed upon the devetoper and the Municipality an
obligation to construct the link road. The amendment was CML's
response to the thrust of the
primary
opposition
to the original relief, namely that the conditions did not impose
such an obligation but it was also precipitated by
the second leg of
the opposition to the original relief, namely that other legislative
obstacles stood in the path of the granting
of the original relief
Thus, it was argued, the provisions of the Roads Ordinance and the
Environment Conservation Act 73 of
1989 also played a role in
determining whether the link road should be constructed, and because
provisions
of
these enactments had not been complied with any attempt to obtain an
order - mandating the construction of the road was doomed.
[63]
But the two central issues between the parties, squarely raised in
the founding papers, were and remained throughout, firstly,
what
phase 1 condition (c) and phase 2 condition (c) required of the
developer and, secondly, whether or not these conditions
had been
complied with. To have refused the application for leave to amend
would have taken matters no further, because of the
flexible nature
of the declaratory remedy to which I have adverted above, and the
fact that it would nonetheless have been within
the discretion of
Court, after having considered all of the relevant factors, to make
an appropriate declaratory order, with
a view to resolving a
"real
and live"
dispute
between the parties.
[64]
To this I must add that counsel for the developer conceded,
correctly in my view, that no prejudice not remediable by an
order
for costs, a postponement and an opportunity to fife further
affidavits woufd result if the amendment was allowed. Although
a
similar concession was not forthcoming from the Municipality I could
not see that any such prejudice would eventuate. The developer
and
the Municipality have had every opportunity to deal with the content
of CML's replying affidavit. In the end, the papers
comprised more
than one thousand pages of reading material. It can hardly be
suggested that the real issue, namely the meaning
of the relevant
conditions, was not fully canvassed in the evidence, or in argument
over a period of five days.
[65]
Having decided that the application for leave to amend should be
granted, and that the respondents would be afforded, as
they had
indicated they would require, an opportunity to deal further with
the CML's reply the striking out applications became
of lesser
consequence. The content of the replying affidavit was, as I see it,
relevant to a determination of the real issue
between the parties,
namely the meaning to be given to the conditions. In any event, at
the stage of the application at which
the striking out applications
were made they were prematurely brought, because the matter was not
at that point before the court
on its merits, counsel for the
developer and the Municipality having indicated at the commencement
of the first hearing that
if the application for leave to amend was
granted a postponement would be sought to enable the filing of
further affidavits (see:
Shepherd
v Tuckers Land and Development Corporation (Pty)
Lfd
(1)
1978
(1) SA 173
(WLD) at 177 D, Herbstein and Van Winsen,
The
Civil practice of the Supreme Court of South Africa, 4
th
edition
at 372 -373). It was for these reasons that I ordered that the
striking out applications be dismissed.
[66]
I must now turn to the question of costs. This matter has been
called in Court on four occasions. It first came up on
11
October
2006 when it was postponed until 13 February 2007. On 12 February
2007 it was again postponed, for hearing to 6 and 7
June 2007, when
the preliminary applications for condonation for the late filing of
replying affidavits, for leave to amend the
relief sought, and to
strike out material contained in the replying affidavits were dealt
with. The merits of the application
were argued on 17, 18 and 19
June 2008.
[67]
I do not think that the developer and the Municipality could be
faulted for having resisted what CML originally sought, namely
an
order compelling either or both of them to build the link road. But
I do not think that they were justified in opposing the
application
for feave to amend, or in bringing the striking out applications.
These issues took up most of the first two days
of the hearing, save
for about one fifth of one day taken up by the opposed application
for condonation. I think that it is fair
that they should each pay
one half of the costs of opposition of the application for leave to
amend and each should pay one half
of CML's costs of the striking
out applications.
[68]
Before dealing with the costs of the hearing on the merits mention
must be made of the first two occasions on which the matter
came
before court. The application was issued on 21 September 2006.
Service on the developer was effected on 27 September 2006
and the
Municipality was served on 28 September 2006. The matter was set
down for hearing on
1
1
October 2006 for the purposes of obtaining an order regulating the
filing of opposing papers, and postponing the hearing on
the merits
to 24 November 2006, that being a date determined in advance by the
Registrar of the Court On 11 October 2006 the
matter was postponed
to 13 February 2007, and again postponed on that day. The matter was
regarded by CML to be semi-urgent,
as is apparent from the manner in
which proceedings were initiated, but it
cannot
escape
attention that it was not dealt with by it with any discemable
expedition, replying affidavits being filed some months
later, and
the exchange of further affidavits taking up much of the year which
has passed since the preliminary points were argued
In the
circumstances I think that it should pay the costs of the developer
and the Municipality in connection with the first
two court
appearances, which would not have been incurred had the matter not
been brought before Court with such haste.
[69]
In regard to the merits of the
matter
CML
has been successful to a large degree, but not entirely. Much of the
argument and material was devoted to the enforcement
of generic
conditions bearing no particular connection with the link road, and
to the Leentjiesklip Road issue which was to all
intents and
purposes abandoned by CML and in respect of which, ultimately, no
relief was sought or required. In addition, because
of CML's shift
in approach in regard to the remedy it sought, some time and effort
was wasted. However, it was successful to
a sufficiently material
degree (as both the developer and the Municipality disputed that the
conditions imposed an obligation
to reflect the entire length of the
link road on the diagram) for it to be just that a portion of its
costs be recovered In the
circumstances I think it is fair that it
should recover two thirds of its costs, such costs to include the
costs of two counsel,
and the qualifying expenses of witnesses
Brummer and Abrahamse.
[70]
I therefore make the following order
(1)
It
is declared that condition (c) of the rezoning and subdivision
approvals granted by the 4
lh
respondent on 29 April 2003, and 27 May 2004 require the subdivision
plans referred to therein to reflect the whole length of
a road
connecting the Main Road 233 from the Golf Club House Intersection
with Minor Road 45 to the east of Club Mykonos;
(2) the
1
st
to 3
rd
respondents are directed to comply with the aforesaid conditions;
(3) the
4
{h
respondent is directed to enforce compliance with the obligation
imposed in this order on the 1
st
to 3
fd
respondents in the manner contemplated in section 31 (1) of the Land
Use Planning Ordinance No. 15 of 1985 and in conditions
(s) and (r),
respectively, of the approvals dated 29 April 2003 and 27 May 2004;
(4)
Save
as set forth in paragraphs 5, 6 and 7 below the 1
st
to 3
rd
respondents
are ordered to pay two thirds of the Applicant's costs and the 4
th
respondent
is ordered to pay two thirds of such costs, which include the costs
of two counsel and the qualifying expenses of witnesses
Brummer and
Abrahamse;
(5) The
1
st
to 4* respondent's are ordered to pay the costs of opposition to the
application for leave to amend and of the costs of the applications
to strike out, such costs to include the costs of two counsel;
(6) The
4
th
respondent is ordered to pay the costs of opposition of the
application for condonation in respect of the late filing of the
applicant's replying affidavits, including the costs of two counsel.
The court time portion of these costs is to be calculated
as being
one fifth of the court time costs incurred on 6 June 2006 (it being
recorded for the sake of clarity that the remaining
4/5ths of the
court time costs incurred on that day refate to the applications for
leave to amend and the striking out applications);
(7) The
applicant shall pay the costs of the 1
s1
to 4
th
respondents incurred in connection with the obtaining of the orders
dated 11 October 2006 and 12 February 2007, such costs to
include
the costs of two counsel where two counsel were employed.
KOEN, AJ