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[2024] ZANCHC 89
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Van Heerden v Van Niekerk N.O and Others (1231/2022) [2024] ZANCHC 89 (13 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No: 1231/ 2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Regional Magistrates: YES/NO
Circulate
to Magistrates:
In the matter between: -
JOHANN JONATHAN VAN
HEERDEN
APPLICANT
and
JACOBUS JOHANNES VAN
NIEKERK N.O.
FIRST RESPONDENT
JM
VAN NIEKERK N.O.
SECOND
RESPONDENT
ANDRIES
CHRISTOFFEL DU TOIT N.O.
THIRD
RESPONDENT
(In their official
capacities as trustees of the
Scheiding Trust (IT
181/2006)
RENOSTERBERG LOCAL
MUNICIPALITY
FOURTH RESPONDENT
MUNICIPAL PLANNING
TRIBUNAL OF
FIFTH
RESPONDENT
THE PIXLEY KA SEME
DISTRICT MUNICIPALITY
Neutral
citation:
Van
Heerden v JJ van Niekerk N.O. and three Others
(Case number 1231/2022)
Heard:
02 August 2024
Delivered:
13 September 2024
Coram:
Stanton J
ORDER
1.
Condonation for the late filing of the first, second and third
respondents’ answering
affidavit is granted;
2.
Condonation for the late filing of the applicant’s replying
affidavit is granted;
3.
The application is postponed
sine die,
pending the finalisation of the first, second and third respondents’
appeal in terms of section 51 of the Spatial Planning
Land Use
Management Act
16 of 2013;
4.
The fourth and the fifth respondents are directed
to process and finalise the first, second and third respondents’
appeal
in terms of section 51 of the Spatial Planning Land Use
Management Act
16 of 2013, the SPLUMA regulations, the
Spatial
Planning and Land Use Management
By-laws, Northern Cape and
the Renosterberg Local Municipality Land Use Scheme; and to provide
affidavits pertaining to the progress
of the appeal to the Office of
the Registrar on a quarterly basis, the first affidavits to be filed
on or before 13 December 2024
and thereafter until the finalisation
of the appeal;
5.
A copy of this judgment and order shall be served
on the fourth and the fifth respondents by the sheriff in terms of
the Uniform
Rules of Court; and
6.
No order as to costs is made.
JUDGMENT
STANTON
J
Introduction:
-
[1]
The applicant issued an application in which he seeks an order in the
following terms: -
1.1
Declaring that the Municipal Planning Tribunal of the Pixley Ka Seme
District Municipality (“the Tribunal”) had dismissed and
rejected the second application dated 16 June 2016 and the
third
application dated 04 April 2020 lodged by the Scheiding Trust (IT
181/2005) (“the Trust) on 04 February 2021;
1.2
Declaring that the Trust’s building plans dated 17 July 2008
had not been approved by the Renosterberg Local Municipality (“the
Municipality”) and/or the Pixley ka Seme District
Municipality;
1.3
Declaring that the Trust’s dwelling and other structures
erected
on Erf 3[...] V[…] Township, Northern Cape: -
1.3.1
Are unlawful and was constructed without any approved building plans;
1.3.2
Was constructed in contravention of the Township’s Scheme
Management Rules, the Title Deed of
Erf 3[...] and the Municipal
By-laws published (“the By-laws”) in accordance with the
Spatial Planning and Land Use Management Act 16 of 2013
as amended
(“SPLUMA”);
1.3.3
Encroaches upon the applicant’s property situated at Erf
3[...]2, V[…] Township, Northern
Cape and infringes on the
building lines of Erf 3[...];
1.4
Ordering and directing the Trust and the trustees, within 90 days
of
this order, to: -
1.4.1
Demolish and/or destroy the dwelling and/or structures unlawfully
erected on Erf 3[...];
1.4.2
In the alternative, to demolish the portion of the structures and/or
dwelling encroaching on Erf 3[...]2;
1.4.3
Ensure that the destruction and/or demolition is done to such an
extent that the structures and/or
dwelling erected on Erf 3[...] is
fully compliant with: -
1.4.3.1
The Scheme Regulations of the V[...] Township;
1.4.3.2
The By-laws;
1.4.3.3
SPLUMA and
the SPLUMA regulations
[1]
;
1.4.3.4
The National Building Regulations and Building Standard Act 103 of
1977 and its regulations;
1.5
In the event that the Trust and/or the trustees fail to demolish
the
structures encroaching onto Erf 3[...]2 within 90 days of the date of
the order, the applicant is authorised to a appoint a
contractor to
demolish such structures at the Trust and/or the trustees’
costs; and
1.6
The Trust to pay the applicant’s costs on an attorney and
client scale.
[2]
The Trust opposed the application and filed a condonation application
in terms of Uniform Rule
27 on 25 August 2022, requesting condonation
for the late filing of its answering affidavit. This condonation
application is unopposed.
[3]
On 19 October 2023 the applicant filed his replying affidavit. The
Trust initially indicated that
it would extend the same courtesy to
the applicant and accede to the late filing of the replying
affidavit, but withdrew this concession
on 12 October 2022. A
condonation application was thus filed on 20 October 2023, which
application the Trust opposes.
[4]
The Trust also oppose the application for declaratory and mandatory
relief on the merits and raised
a point
in limine
that the
application is premature as the decision by the Tribunal, together
with the condonation application for the late filing
thereof, is
pending.
[5]
Neither the Municipality nor the Tribunal oppose the application.
Ad
condonation application in respect of the replying affidavit: -
[6]
The extension or abridging of time is governed by the provisions of
Uniform
Rule 27 that provides: -
‘
(1)
In the absence of an agreement between the parties, the
court may upon application
on
notice and on good cause shown, make an order extending or abridging
any time prescribed by these rules or by an order of court
or fixed
by an order extending or abridging any time for doing any act or
taking any step in connection with any proceedings of
any nature
whatsoever upon such terms as to it seems meet.
(2)
Any such extension may be ordered although the
application therefor is not made until after expiry
of the time
prescribed or fixed, and the court ordering any such extension may
make such order as it seems meet as to the recalling,
varying or
cancelling of the results of the expiry of any time so prescribed or
fixed, whether such results flow from the terms
of any order or from
these rules.
(3)
The court may, on good cause shown, condone any
non-compliance with these rules.’
[7]
It is trite that in the exercise of these powers a court is given a
wide discretion, which must
be exercised judicially on a
consideration of the facts of each case.
[2]
The relevant circumstances must be assessed in a balanced fashion.
The fact that the applicant is strong in certain respects and
weak in
others will be borne in mind in the evaluation of whether the
standard of good cause has been achieved. Absence of
prejudice
has often been regarded as an element of good cause in the context of
earlier legislation.
[8] Two
principal requirements for the favourable exercise of the court’s
discretion
have
crystallised: First,
an applicant should file an affidavit satisfactorily explaining the
delay. In this regard it has
been held that an applicant must
at least furnish an explanation of his default sufficiently full to
enable the court to understand
how it really came about, and to
assess his conduct and motives. A full and reasonable
explanation, which covers the whole
period of delay must be given.
The application must be
bona
fide
and
not made with the intention of delaying the opposite party’s
claim. The second requirement is that the applicant
should
satisfy the court that his or her application is clearly not
ill-founded.
[3]
In
Valor
IT v Premier, North West Province and Others
,
[4]
Plasket JA said that ‘
very
weak prospects of success may not offset a full, complete and
satisfactory explanation for a delay; while strong merits of
success
may excuse an inadequate explanation for the delay (to a point).
’
[9]
Furthermore, as stated in
Commissioner
for Inland Revenue v Burger
,
[5]
an acceptable explanation should be provided not only in respect of
the non-compliance, but also for the delay in seeking condonation.
[10]
I now turn to the explanation proffered by the applicant for his
default in filing the replying affidavit
that was due by 08 September
2022. The applicant concedes that the replying affidavit was filed
approximately 13 months out of
time. The applicant’s spouse,
Mrs YS van Heerden, deposed to the founding and replying affidavits
in support of the condonation
and explains that the applicant has
difficulty in scanning and printing documents as he was in Namibia.
The Trust takes issue with
this and submits that the two affidavits
constitute hearsay evidence. The applicant, however, filed a
confirmatory affidavit confirming
the contents of the founding and
replying affidavits. I am satisfied that the two affidavits do not
constitute hearsay evidence
and can be admitted into evidence.
[11]
According to the applicant, the late filing of the replying affidavit
is attributed to: -
11.1
The answering affidavit was served on the office of the applicant’s
attorney, Jacques Classen Incorporated
(“JCI”) on 25
August 2022 whereafter the applicant instructed JCI to employ counsel
to prepare the replying affidavit.
During the same period, the
applicant had also instructed JCI to attend to an arbitration between
the applicant and Total Namibia
in respect of which arbitration
proceedings the amount of R226 363,40, not disputed by Total
Namibia, was paid into JCI’s
trust account for the applicant’s
benefit. The applicant instructed JCI to retain the funds on their
trust account to ensure
that there are sufficient funds available for
the litigation in this matter. During November 2022 the applicant
paid a further
amount of R80 000,00 into JCI’s trust
account to cover legal expenses incurred. The attorney who attended
to the applicant’s
matters at JCI, however, resigned and left
the firm on 20 December 2022 whereafter a new attorney took over;
11.2
The applicant laboured under the incorrect impression that JCI was
attending to the necessary because sufficient
funds, in the
applicant’s view, were available to do so;
11.3 On
or during 14 February 2023 the applicant attended to a telephonic
discussion with his new attorney at
JCI during which he provided the
outstanding information to finalise the replying affidavit. He could
not attend to same at an
earlier stage as he was working in Namibia.
After the consultation, the applicant assumed that the steps that
needed to be taken
had been complied with;
11.4 On
or about 28 March 2023 the applicant received an “astronomical”
account from JCI; and as a
result a dispute pertaining to the legal
fees ensued, which is evident from the email correspondence exchanged
between the applicant
and JCI during March and April 2023. The
applicant refused to make payment. The new attorney who took over the
applicant’s
files at JCI left the firm during March 2023. JCI
instructed counsel to not proceed with any work on behalf of the
applicant; and
on 25 May 2023 JCI withdrew as his attorney of record
in a related matter issued under case number 1522/2020. Needing
assistance
in the assessment of the way forward, the applicant
contacted the Trust’s attorney, Kramer Weihmann Inc. (“KWI”)
and was informed that KWI will be able to assist the applicant as it
no longer acted for the Trust. The applicant formally appointed
KWI
as his attorney of record on 22 June 2023;
11.5 On
service of the notice of set down by the sheriff on 07 July 2023, the
applicant instructed KWI to attend
to the necessary work to ensure
that the matter proceeds without delay as the applicant was under the
impression that the replying
affidavit had been filed. At the end of
September 2023 KWI informed the applicant that the Trust’s new
attorney had taken
issue with the fact that KWI came on record as the
applicant’s attorney as KWI previously acted for the Trust. On
or about
20 September 2023 the applicant procured the services of his
current attorney of record, Roodt and Co Attorneys Inc. (“Roodt”),
who advised him that requesting the file content from JCI would be
futile in view of the ongoing dispute about fees;
11.6 On
03 October 2023 the applicant’s attorney was able to consult
with counsel who previously assisted
the applicant. On the same day
the applicant’s attorney informed the Trust’s attorney
that the replying affidavit would
be finalised and is intended to be
filed on 13 October 2023. Unfortunately, the applicant’s
counsel had been briefed to appear
in an urgent application and the
replying affidavit was not filed on 13 October 2023. On 18 October
2023 Roodt addressed an email
to the Trust’s attorney
explaining the delay in filing the replying affidavit; and also
tendered the wasted costs for the
removal of the application. The
uncommissioned replying affidavit was served on 18 October 2023;
11.7
The Trust was not prejudiced by the late filing of the replying
affidavit for the following reasons: -
11.7.1 The matter
was postponed on 23 October 2023 with the applicant paying the wasted
costs;
11.7.2 The Trust’s
allegation that the appeal to the Tribunal against its decision for
the relaxation of the restrictive conditions
is still pending; and
11.7.3 The Trust’s
point
in limine
that this application is premature.
[12]
Mr JHF le Roux, on behalf of the applicant, added that the applicant
has great success in the main application
as the appeal against the
Tribunal’s decision is meritless as the Trust commenced and
completed construction without approved
building plans, with the
result that the Trust’s buildings encroach on the applicant’s
erf.
[13]
The nub of the Trust’s opposition to the condonation
application is: -
13.1
The long period that had lapsed between 25 August 2022 and 19 October
2023, taking into consideration the
fact that Mr W Pienaar, the same
attorney employed by JCI, acted for the applicant at Roodt;
13.2
The applicant did not act with reasonable promptitude and also failed
to explain why condonation was not
sought earlier;
13.3
The chronology exposes that the applicant is not scrupulously
accurate;
13.4
The applicant failed to disclose material email correspondence
between in his and the Trust’s attorneys;
13.5 No
reasonable explanation has been advanced for not requesting a
condonation during 2022 or thereafter; and
13.6
The applicant failed to provide a full and satisfactory explanation
for the entire period of the delay.
[14]
Mr N Snellenburg SC, on behalf of the Trust, emphasised that this
Court should take note of the fact that
the applicant, in response to
the Trust’s attorney’s various enquiries as to when the
replying affidavit would be filed,
simply and continuously stated,
without explanation or providing a date, that it would be filed ‘
in
due course.’
[15]
In addition he argued that the email of 19 December 2022 is telling.
In this email the applicant advised
that: -
“
We
are still awaiting the signed Replying Affidavit from our client as
he is experiencing technical difficulties in Namibia sending
same to
our office. We will provide your office with the Replying Affidavit
once same is received by our office.”
[16] In
support of his argument that the condonation application should be
dismissed, Mr Snellenburg contended
that this email unambiguously
confirms that a replying affidavit had been drafted and sent to the
applicant for signature in Namibia,
long before the dispute over fees
occurred; and that the only difficulty preventing the service and
filing thereof is of a technical
nature. According to his argument
this email is significantly contradicted by Mr W Pienaar’s
email dated 20 September 2023,
which states that “
We will
consult with Counsel on this matter next week and will in all
probability file a Replying Affidavit in due course.”
He
urged me to draw a negative inference to this discrepancy.
[17]
Mr le Roux countered that this discrepancy is adequately clarified in
reply where the applicant states that
“
Although counsel was
ready to finalise the replying affidavit early in January 2023, due
to a dispute between the Applicant and
Jacques Classen Incorporated,
counsel was instructed to halt work altogether.”
Moreover,
he submitted that the applicant adequately explained, albeit in
reply, that due to technical difficulties, consultation
was
problematic.
[18]
I am prepared to condone the applicant’s non-compliance
to the Uniform Rules of Court
for the following
reasons: -
18.1
The Trust’s argument that Roodt could merely proceed with the
application as Mr Pienaar, now employed
by Roodt, does not take
cognisance of the fact that JCI had a retention right to the file,
pending the resolution of the financial
dispute;
18.2
The dispute between the applicant and JCI clearly resulted in the
protracted delay;
18.3 On
perusal of the court file, JCI did not withdraw as the applicant’s
attorney of record herein in
terms of the Uniform Rules of Court;
18.4
In my view the condonation application is not
mala fide
as the
applicant would not benefit by delaying the application
;
18.5
The applicant provided at least a sufficiently full and reasonable
explanation for delay, which covers the
whole period;
18.6
The Trust initially indicated that it would not oppose the late
filing of the replying affidavit;
18.7
The Trust received the replying affidavit well in advance of the
hearing of the matter and no prejudice was
caused in any way that
cannot be compensated by a suitable cost order; and
18.8
The Trust’s point in
limine
that the
application is premature as a result of the pending appeal
underscores that the Trust would not be prejudiced by the delay.
[19]
I am not inclined to take the applicant’s prospects of
success into consideration as the appeal is still pending, but to my
mind t
he applicant, with reference to the
rejection of the Trust’s application by the Tribunal, at the
very least, has demonstrated
that this application is not
ill-founded.
Factual
background: -
[20]
The core of the dispute between the parties pertains to the approval
of building plans, which the applicant
alleges contravenes the title
deed restrictions. This matter has a protracted history, the
litigation between the applicant and
the Trust, as neighbours on
erven 3[...] and 3[...]2 V[...], already commenced during January
2009. The dispute resulted in various
applications to court,
including a review application; and applications and appeals to the
Tribunal. On 09 September 2020 the applicant
instituted an urgent
application for an order to interdict and restrain the Municipality
and the Tribunal from reconsidering the
application. In dismissing
the application, I found that the April 2020 submission was no more
than the September 2016 application,
supplemented in accordance with
the appeal tribunal’s resolution.
Point
in limine
- premature application: -
[21]
The next issue that requires adjudication is whether the application
is premature or not.
[22]
On 25 February 2022 the Municipality informed the Trust that: -
22.1
Its application for the removal of the restrictive conditions and
departure in terms of SPLUMA and By-laws
was rejected; and
22.2
Should it wishes to do so, an appeal must be lodged in terms of
section 51(i) of SPLUMA (“the appeal”).
[23] In
its founding affidavit in this application, the applicant makes no
reference to the appeal.
[24]
According to the Trust this application is premature and stands to be
dismissed as: -
24.1 It
had lodged an appeal together with the late fling thereof on 06 April
2022; and
24.2
The applicant is aware of the pending appeal and the condonation
application.
[25]
The applicant, in reply: -
25.1
Argues that it was never disclosed to him that the Tribunal rejected
the applications and that an appeal
had been lodged. In response to
the allegation, the applicant, however, does not deny that it has
been lodged, but merely notes
that “…
the appeal has
been lodged and that there is, at least to Applicant and my
knowledge, a pending condonation application for the
appeal and
pending appeal.” ;
25.2
States that a period of 14 months had lapsed since the appeal and the
condonation application in respect
thereof has been filed; and
invited the Trust to provide the court with the outcome of the
appeal. In addition, the applicant asserts
that he will
simultaneously with the filing of the replying affidavit deliver a
notice in terms of Rule 35(12) and (14); and
25.3
Claims that, if the court upholds the point
in limine
, the
application should not be dismissed, but stayed, until the outcome of
the appeal is made available.
[26] Mr
le Roux submitted that the point
in limine
should be rejected
since the allegation that an appeal is pending is far-fetched and
untenable as: -
26.1
The Trust failed to provide any proof that the appeal had been lodged
with the municipal manager as the notice
of appeal does not bear the
municipal manager’s stamp; and no proof of delivery is
provided. Furthermore, Ms. J Bruwer of
Macroplan who submitted the
appeal on behalf of the Trust did not depose to a confirmatory
affidavit;
26.2
The notice of appeal was not served on the applicant;
26.3
The applicant was not provided with the opportunity as envisaged by
the
audi alteram principle
and the SPLUMA regulations to make
submissions in opposition to the appeal; and
26.4
The Trust failed to prove that it had taken any further steps to
follow up on the outcome of the appeal.
[27]
The arguments require consideration in the context of Section 51 of
SPLUMA and the SPLUMA regulations.
[28]
Section 51 provides: -
‘
Internal
appeals.
—
(1)
A person whose rights are affected by a decision taken by a Municipal
Planning Tribunal may appeal
against that decision by giving written
notice of the appeal and reasons to the municipal manager within 21
days of the date of
notification of the decision.
(2)
The municipal manager must within a prescribed period submit the
appeal to the executive authority
of the municipality as the appeal
authority.
(3)
The appeal authority must consider the appeal and confirm, vary or
revoke the decision.
(4)
A person whose rights are affected within the provisions of
subsection (1) includes—
(a)
an applicant contemplated in section 45 (1);
(b)
the municipality where the land affected by the application is
located;
(c)
an interested person who may reasonably be expected to be affected by
the outcome of the land development
application proceedings.
(5)
An interested person for the purpose of subsection (4) (c) must be a
person having a pecuniary or proprietary
interest who is adversely
affected or able to demonstrate that she or he will be adversely
affected by the decision of the planning
tribunal or an appeal in
respect of such a decision.
(6)
A municipality may, in the place of its executive authority,
authorise that a body or institution outside
of the municipality or
in a manner regulated in terms of a provincial legislation, assume
the obligations of an appeal authority
in terms of this section.
(7)
No appeal in respect of a decision taken in terms of or pursuant to
this Act may be lodged in terms
of section 62 of the Municipal
Systems Act.’
[29]
Various SPLUMA regulations are also in play. SPLUMA regulation 20
grants municipalities the discretion to
determine appeal procedures,
which includes the procedures for the lodging and consideration of
appeals contemplated in section
51 of SPLUMA. SPLUMA regulation 21(f)
provides that the appeal procedures determined by a municipality must
include the manner
of submission and notice to oppose an appeal.
SPLUMA regulation 25 obliges the appeal authority to ensure that
every party to a
proceeding before the appeal authority is given an
opportunity to present his or her case and, in particular, to inspect
any documents
to which the appeal authority proposes to have regard
in reaching a decision in the proceeding and to make submissions in
relation
to those documents.
[30] I
am not persuaded that the appeal has not been submitted as: -
30.1
On face value, Ms. J Bruwer submitted the appeal together with the
condonation application to the municipal
manager on 06 April 2022.
The applicant’s submission in his replying affidavit does not
support the contrary argument. In
accordance with
Plascon-Evans
,
the scale is tilted in favour of the Trust;
30.2
Neither SPLUMA nor the SPLUMA regulations stipulate that an appeal
must be served by an appellant on interested
parties. This function
is specifically delegated to the municipality and municipal manager
in section 51 of SPLUMA, read with SPLUMA
regulations 20, 21(f) and
25;
30.3
The argument that, absent the opportunity to make
submissions in opposition to the appeal, is indicative of the fact
that the appeal
was not lodged, also does not withstand scrutiny in
view of
SPLUMA regulation 25 that requires that the appeal
authority, and not the appellant, must ensure that every party to a
proceeding
before the appeal authority is given an opportunity to
present his or her case and, in particular, to inspect any documents
to
which the appeal authority proposes to have regard in reaching a
decision in the proceeding and to make submissions in relation
to
those documents. Any blame for the failure to inform the applicant of
the appeal, and the processing thereof, should be attributed
to the
fourth and/or fifth respondents; and
30.4
Despite asserting his rights in terms of Rules 35(12) and 35(14), I
find no indication that the applicant
indeed followed that route.
[31]
In addition, Mr le Roux argued that the failure to note the appeal
within 21 days as prescribed by section
51(1) of SPLUMA cannot be
condoned. In support of this contention, he relies on the fact that
the draft SPLUMA regulations
[6]
provided for condonation on good cause shown, whereas the final
SPLUMA regulations do not contain a similar provision. He referred
to
Rainbow
Junction Development and another v City of Tshwane Metropolitan
Municipality and 4 others (“Rainbow”)
[7]
where
the court held: -
‘
In
any event, if the legislature, by enacting SPLUMA, had intended to
change the existing legal position, it would have explicitly
stated
its intentions in a clear and unambiguous language, - and one would
have expected an unequivocal provision to that effect.
In the absence
of such, it must be assumed that the legislature did not intend to
change the existing legal position. I am of the
view that the
apparent purpose to which the statutory right to appeal in section
51(1) of SPLUMA and section 20(1)(c) of the By-laws
is directed, must
be considered and adhered to.
[32]
The decision in
Rainbow
does
not vindicate his argument as the court there had to pronounce on
the
right of a person, who simply ignored the public participation
procedures prescribed in terms of SPLUMA and the statutory time
periods attached thereto, and thereafter filed a belated appeal
demanding a hearing. The court in
Rainbow
did not dismiss the application on the basis that the appeal was
filed after the prescribed 21 day period. Mr le Roux’s argument
is additionally misplaced as section 40(2) of the Municipality’s
By-laws
[8]
and section 112(2) of
its Land Use Scheme
[9]
stipulate
that the municipal planning tribunal or the designated
employee/official may on its own initiative or on application
by the
applicant or an interested party, and upon good cause shown, condone
an error in a procedure, provided that such condonation
does not have
a materially adverse effect on, or unreasonably, prejudices any
party.
[33]
I agree that the point
in limine
is dilatory in nature and
accordingly that the dismissal of the application on this point is
incompetent in the circumstances.
[34]
This is, however, not the end of the matter. SPLUMA regulation 30
specifies that a municipal manager must,
as soon as practicable, but
no later than 14 days after completion of the pre-hearing process
(during which all the necessary documentation
must be obtained, the
applicant and objectors must be informed and the appeal referred to
the appeal authority) submit the appeal
to the appeal authority to
hear the appeal; and that the pre-hearing process must be completed
within 150 days from the date of
receipt of the notice of the appeal
by the municipal manager. Neither the fourth nor the fifth respondent
opposed the application,
nor did they provide an explanatory
affidavit that could have greatly assisted the court. I find the time
lapse since
06 April 2022
rather
disquieting and can come to no other conclusion than that the fourth
and/or fifth respondents have not adhered to SPLUMA
regulation 30;
and that the Trust failed to diligently pursue the appeal. This is
unacceptable.
[35] In
view of my findings above, it is not necessary to deal with the
merits of the matter.
COSTS: -
[36]
The remaining issue is the issue of costs. Both counsel submitted
that costs should follow the cause, but
that same should be awarded
on an attorney and client scale in view of the conduct of the
opposing party. I am not swayed that
either parties’ conduct is
deserving of censure. The applicant being successful in his
application for condonation and the
Trust being successful in raising
the preliminary point that the application is premature, justify that
each party should be directed
to pay their own costs.
Wherefore:
-
1.
Condonation for the late filing of the
first, second and third respondents’ answering affidavit is
granted;
2.
Condonation for the late filing of the
applicant’s replying affidavit is granted;
3.
The application is postponed
sine
die
pending the finalisation of the
first, second and third respondents’ appeal in terms of section
51 of the Spatial Planning
Land Use Management Act
16 of 2013;
4.
The fourth and the fifth respondents are
directed to process and finalise the first, second and third
respondents’ appeal
in terms of section 51 of the Spatial
Planning Land Use Management Act
16 of 2013, the SPLUMA
regulations, the Spatial Planning and Land Use Management By-laws,
Northern Cape and the Renosterberg Local
Municipality Land Use
Scheme; and to provide affidavits pertaining to the progress of the
appeal to the Office of the Registrar
on a quarterly basis, the first
affidavits to be filed on or before 13 December 2024 and thereafter
until the finalisation of the
appeal; and
5.
A copy of this judgment and order shall be
served on the fourth and the fifth respondents by the sheriff in
terms of the Uniform
Rules of Court; and
6.
No order as to costs is made.
STANTON, A
On
behalf of the applicant:
Adv.
JHF le Roux
On
instruction of Roodt and Co Attorneys Inc.
Care
of Engelsman Magabane Inc.
On
behalf of the first, second and third respondents:
Adv
N Snellenburg SC
On
instruction of Muller Gonsior Inc.
Care
of Haarhoffs Inc.
[1]
GNR.239
of 23 March 2015 (Government Gazette No. 38594).
[2]
Smith
NO v Brummer NO 1954(3) SA 352 (O) at 358A.
[3]
Erasmus:
Superior Court Practice Vol 2 at D1-323-5.
[4]
2021
(1) SA 42
(SCA)
para 38.
[5]
1956
(4) SA 446
(A)
at 449G-H.
[6]
General
Gazette Notice 526 of 2014, draft regulation 119.
[7]
Unreported
judgment case number (GDP) 82434/2019 handed down on 12 January 2022
para [22].
[8]
Provincial
Gazette Notice 150 of 2015 19 October 2015.
[9]
General
Notice 217 of 2022 30 May 2022.