THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 789/2024
In the matter between:
NELSON MANDELA BAY
METROPOLITAN MUNICIPALITY APPLICANT
and
SIYALANDA PROPERTY
DEVELOPMENT (PTY) LTD RESPONDENT
Neutral citation: Nelson Mandela Bay Metropolitan Municipality v Siyalanda
Property Development (Pty) Ltd (789/2024) [2026] ZASCA 18
(20 February 2026)
Coram: MAKGOKA, K EIGHTLEY and K OEN JJA and B LOEM and
OPPERMAN AJJA
Heard: 10 November 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for the handing down of the
judgment are deemed to be 20 February 2026 at 11h00.
2
Summary: Application for special leave to appeal – s 16(1)(b) of the Superior
Courts Act 10 of 2013 – Property zoning – regulation 9.3.1.2 of the Port Elizabeth
Zoning Scheme Regulations – whether requirements for special leave established
3
ORDER
On appeal from: Eastern Cape Division of the High Court, Makhanda (Hartle
and Brooks JJ and Pretorius AJ sitting as court of appeal):
The application for special leave to appeal is dismissed with costs.
JUDGMENT
Opperman AJA (Makgoka, Keightley and Koen JJA and Bloem AJA
concurring):
Introduction
[1] This is an application for special leave to appeal by the applicant , the
Nelson Mandela Bay Metropolitan Municipality (the municipality), against an
order of the full court of the Eastern Cape Division, Makhanda ( the full court).
The full court upheld an appeal by the respondent , Siyalanda Property
Development (Pty) Ltd (Siyalanda), against an order of a single Judge (the high
court) which had dismissed an application for certain declaratory relief by
Siyalanda. The application for special leave was referred for oral argument in
terms of s 17(2)(d) of the Superior Courts Act 10 of 2013 (the Act). The parties
were directed to be prepared to argue the merits of the appeal, if called upon to
do so. At the hearing, counsel for the parties addressed the Court on both these
aspects.
[2] The dispute is whether Siyalanda is required to provide open space for its
intended development of 420 dwelling units. If so required, the extent of such
open space . In its first Site Development Plan1 (SDP) submitted to the
1 An SDP is a precursor to the submission to, and consideration by, the municipality of building plans.
4
municipality, Siyalanda tendered and provided for 11 937m2 open space. The
municipality insisted on 16 884m2. The key to unlocking this impasse lies in the
interpretation of regulation 9.3.1.2 of the repealed Port Elizabeth Zoning Scheme
Regulations (the Scheme)2 which provided:
‘When an erf is created for residential purposes where more than one dwelling unit is
permitted, whether by subdivision or rezoning , the owner shall provide, free of charge, open
space in the ratio of 54m2 in respect of every dwelling unit in excess of six, or 14m2 in respect
of every habitable room in excess of twenty-four, which may be erected on the erf.’ (Emphasis
added.)
The common cause facts
[3] Siyalanda is the owner of erf 3783 Summerstrand, Gqeberha (the property).
The property was formed by the consolidation of two portions, being erven 3112
and 3782. Both erven 3112 and 3782 were remainders or portions of a parent
property originally known as erf 1256. Erf 3112 was previously known as portion
of erf 1256. It was later re-designated as erf 3112. Siyalanda acquired it from the
municipality by way of transfer in 2002 . Siyalanda later acquired erf 3782 from
the municipality in 2008. Both properties, which were consolidated to form the
property, were thus formerly portions of subdivided land.
[4] On 13 September 2018, Siyalanda submitted the first SDP for approval to
the municipality in terms of regulation 11 of the Scheme. Regulation 11 requires
any entity intending to erect units for a proposed development to submit for
acceptance an outline which shows the main features of the development
including the siting of all buildings, parking areas and the extent and position of
any open space to be provided. The first SDP provided for a development
consisting of 420 residential units contained in 30 blocks of flats as well as a
clubhouse, a park, and other recreational open spaces.
clubhouse, a park, and other recreational open spaces.
2 The Scheme was approved by Provincial Notice No. 676, dated 2 November 1990, pursuant to s 9(2) of the Land
Use Planning Ordinance, 15 of 1985 (LUPO), which has also been repealed.
5
[5] The assessment by the municipality of the first SDP was completed. On 2
October 2018, the municipality informed Siyalanda that it was pointed out that
various additional matters, unrelated to the provision of ‘open space’, must form
part of the SDP . On 10 April 2019 , the first SDP was re -submitted with the
additional information which had been requested . The municipality responded
that Siyalanda was required to make provision for open space as provided for in
regulation 9.3.1.2 of the Scheme. The municipality relied on its internal directives
which it subsequently conceded had no legal force and could not be relied upon.
[6] The Director of Land Use, in reasons provided on 9 July 2019 , explained
that open space was to be provided in accordance with regulation 9.1.3.2 as the
property had been rezoned for residential purposes. The municipality contended
that the property was not initially designed for residential purposes and
accordingly, open space would be required as contemplated in the Scheme.
[7] On 7 August 2019, Siyalanda re -submitted the first SDP together with a
revised second SDP . The second SDP provided for 25 residential blocks and
complied with the municipality’s stipulations with regard to open space. In its
covering letter, Siyalanda advised the municipality that should it approve the first
SDP, that would be the end of the matter . However, the letter continued, should
the municipality refuse to approve the first SDP (and even if it approved the
second SDP), Siyalanda reserved its right to proceed with the development as
reflected in the second SDP. Siyalanda made it clear that it did so under protest,
and did not accept that the first SDP was non-compliant. It accordingly reserved
the right to challenge that decision by way of a review in the high court.
[8] On 4 October 2019 , Siyalanda was advised that the second SDP was
approved. Siyalanda proceeded in terms of the second SDP under reservation of
approved. Siyalanda proceeded in terms of the second SDP under reservation of
its rights to bring the application as recorded in its letter of 7 August 2019.
6
[9] Siyalanda lodge d an internal appeal in terms of s 62(1) of the Local
Government: Municipal Systems Act 32 of 2000 ( the Systems Act). It alleged
that the municipality’s officials had acted unlawfully and beyond their authority
by refusing to approve a SDP unless it contained provision for open space. The
internal appeal did not proceed as the municipality failed to determine it.
Litigation history
[10] Siyalanda launched an application in the high court, seeking, amongst other
relief, to review and set aside the failure by the municipality to decide the internal
appeal and a declaration that the provision s of regulation 9.3.1.2 of the Scheme
are not applicable to the development of the property.
[11] The municipality opposed the application. Subsequently, the parties
engaged in correspondence, during which the municipality made several
concessions in favour of Siyalanda. It also made proposals for the further conduct
of the matter, which the parties ultimately agreed on. The agreement is set out in
a letter dated 25 November 2020 from Siyalanda’s attorneys as follows:
‘Should regulation 9.3.1.2 be applied, [the municipality’s] planning officials will make a final
decision regarding the amount of open space to be provided. [Siyalanda] will then have an
election, either to amend the first SDP further; or to accept your client’s approval of the second
SDP as regulating its development; or to request [the municipality’s] council to exercise its
discretion in terms of regulation 9.3.2.1 (such request to be accompanied by any motivation
[Siyalanda] may consider to be necessary.’
[12] Subsequently, Siyalanda delivered an amended notice of motion and a
supplementary founding affidavit. In relevant parts, the amended notice of motion
reads:
‘2. Declaring that the provisions of regulation 9.3.1.2 of the Port Elizabeth Town Planning
Scheme Regulation s (“the Scheme”) are not applicable to the Applicant’s proposed
development on Erf 3783 Summerstrand (“the Development”);
7
3. Alternatively to 2 above , and in the event that it is found that the provisions of regulation
9.3.1.2 of the Scheme are applicable to the Development:
3.1 Declaring that the contents of neither the directive issued by the Director : Land Planning
recorded in the Respondent’s email of 31 May 2019 (“the Directive”) nor the document headed
“Guidelines for the Provision of Open Space in Residential 2 and 3 Type Developments” (“the
Guidelines”) are applicable to or fall to be taken into account in any determination by the
Respondent of whether open space is to be provided in the Development or as to the nature or
extent thereof;
3.2 Directing that in the event of such a decision:
3.2.1 the Respondent’s responsible official is to make a final decision as to the amount of open
space to be provided;
3.2.2 the Applicant is thereafter to have an election either to amend the first SDP further; or to
accept the Respondent’s existing approval of the second SDP as regulating its development; or
to request the Respondent’s Council to exercise its discretion in terms of regulation 9.3.2.1 of
the Scheme (such request to be accompanied by any motivation the Applicant may see fit to
submit);
3.3 Declaring that the approval by the Respondent of a departure as envisaged in s 15 of the
Land Use Planning Ordinance, 1985 or the provision by it of an authorisation as envisaged in
s 28(4) of the Spatial Planning and Land Use Management Act 2013 (or any similar provision
or application) is not a prerequisite for the consideration b y the Respondent’s Council of
whether a lesser amount of open space is to be provided than that required to be provided in
terms of regulation 9.3.1.2;
. . .
5. That the matter be remitted to the Respondent for consideration by it of the Applicant’s first
SDP subject to the direction that it do so without requiring the Applicant to comply with the
provisions of regulation 9.3.1.2 of the Scheme in respect thereof (or such further or alternative
directions as the Court may see fit to issue) . . .’.
[13] A final decision relating to the first SDP was thus held in abeyance by
agreement, pending the court’s decision on regulation 9.3.1.2 . I refer to this as
the interim agreement. On 8 February 2022, the high court held that regulation
9.3.1.2 is applicable. It subsequently granted Siyalanda leave to appeal to the full
court. The issues which were placed before the full court by agreement were: (a)
8
whether the property was created for residential purposes as envisaged by
regulation 9.3.1.2; and (b) whether the first SDP should make provision for open
space in the ratio described in regulation 9.3.1.2.
[14] The term ‘open space’ is not defined in the Scheme although the terms
‘Private Open Space’ and ‘Public Open Space’ are. The full court concluded that
open space as used in regulation 9.3.1.2 could only refer to ‘Public Open Space’.
It reached this conclusion by applying the limitation imposed on the provision of
open space contemplated in regulation 9.3.3 which is that only land which in the
opinion of the municipality is suitable for purposes of sport, play or recreation,
would qualify. It could only be pu blic open space, so the full court reasoned,
because it was to be provided by the owner free of charge and was to be
transferred to the municipality. That being so, the open space could only be of the
standard that lends itself to being zoned as public ope n space as it could not
seriously be suggested that communal space in the development should be
transferred to the municipality.
[15] The full court held that regulation 11.1.2 (x) of the Scheme ‘the extent and
position of any Open Space to be provided’, should be interpreted to apply only
to cadastral subdivisions envisaged under Part V of the Scheme dealing with
subdivision of land and the property. It accordingly set aside the order of the high
court and replaced it with the following order:
‘1. It is declared that the provisions of regulation 9.3.1.2 of the Port Elizabeth Town Planning
Scheme Regulations (“the Scheme”) are not applicable to the Applicant's proposed
development on 3783 Summerstrand.
2. The following decisions and/or actions of the Res pondent through the medium of its
employees in the course of their functions as such are reviewed and set aside:
2.1 the failure of the respondent to consider and finally approve or reject the first Site
Development Plan (“SDP”);
Development Plan (“SDP”);
2.2 the respondent’s c onclusion that the first SDP does not comply with the purported
provisions of Regulation 9.3.1.2 of the Scheme.
9
3. The matter is remitted to the Respondent for consideration by it of the Applicant ’s first
SDP and the Respondent is directed to do so withou t requiring the Applicant to comply with
the purported provisions of Regulation 9.3.1.2 of the Scheme.
4. The Respondent shall pay the costs of the application.’
Special leave to appeal
[16] Aggrieved by the order of the full court, t he municipality applied to this
Court for special leave to appeal against that order. The application was referred
for oral argument in terms of s 17(2)(d) of the Act . The threshold test for an
application for special leave to appeal is trite. In addition to reasonable prospects
of success, ‘some additional factor or criterion [is] to play a part in the granting
of special leave’.3 This Court in Cook v Morrison,4 held that:
‘The existence of reasonable prospects of success is a necessary but insufficient precondition
for the granting of special leave. Something more, by way of special circumstances, is needed.
These may include that the appeal raises a substantial point of law; or that the pros pects of
success are so strong that a refusal of leave would result in a manifest denial of justice; or that
the matter is of very great importance to the parties or to the public. This is not a closed list.’
This Court is thus called upon to determine whe ther, in addition to reasonable
prospects of success, there are special circumstances that merit a further appeal.
Special circumstances
[17] One of the significant features of this case is that the Scheme regulating
the open space issue, and hence the underlying dispute, has been repealed. For
this reason, the question whether special circumstances exist to grant special
leave may feasibly be considered discreetly, rather than, as is so often the case,
intertwined with the prospects of success were leave to be granted.
3 Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) at 561E-F.
4 Cook v Morrison and Another [2019] ZASCA 8; [2019] 3 All SA 673 (SCA); 2019 (5) SA 51 (SCA) para 8.
10
[18] The Scheme was promulgated in terms of LUPO, which has been repealed
by the Repeal of Local Government Laws (Eastern Cape) Act No. 1 of 2020. The
Nelson Mandela Bay Metropolitan Municipality Land Use Scheme 2023
(Integrated Scheme) issued in terms of Proclamation Notice 14 of 2023 and
approved in terms of s 24(1) of the Spatial Planning and Land Use Management
Act of 2013 (SPLUMA), came into effect on 11 September 2023 and replaced ,
amongst other schemes, the Scheme under consideration. Regulation 66 of the
Integrated Scheme provides that open space is a requirement for developments
such as the one under consideration, and that 24 m2 of private open space is to be
provided per dwelling unit. The Integrated Scheme does not have retrospective
effect.
[19] The municipality contended that, in addition to the existence of reasonable
prospects of success, there are two reasons that constitute special circumstances
notwithstanding that the Scheme has been repealed. First, that there are more than
420 members of the public who are potential residents in the proposed
development on the property who will be adversely affected should the judgment
of the full court be allowed to stand. Second, that there are other SDPs in respect
of different developments which were submitted prior to the date on which the
Integrated Scheme came into effect and which are pending assessment . They
would thus be affected by the judgment of the full court. The essence of the
municipality’s argument is that the appeal is of great importance not only to the
parties but to the public and that, for this reason, special circumstances are
established.
[20] As indicated, from 11 September 2023, when t he Integrated Scheme was
promulgated and came into effect, it replaced all other zoning schemes applicable
11
to its area of jurisdiction, including the Scheme.5 Regulation 8(1) of the Integrated
Scheme provides:
‘Any application made and accepted in terms of the former zoning scheme, land use scheme or
town planning scheme which is still in process at the commencement date shall be assessed
and finalised in terms of such former zoning scheme, land use scheme or town planning
scheme, except where it has been withdrawn by the applicant in writing.’
[21] For the repealed regulation 8 of the Integrated Scheme to remain applicable
to an application for approval, the relevant SDP must have been submitted prior
to 11 September 2023. This is approximately 10 months prior to the application
for leave to appeal to this Court in July 2024. Of some moment is the fact that the
municipality has provided no details of the number of SDPs which it contends
have been held in abeyance and await assessment by virtue of their similarity to
that of Siyalanda, pending determination of this application. It would have been
an easy matter for the municipality to provide that information. Such facts are
glaringly absent. There is no explanation why that information was not placed
before the Court. This is particularly important given that the municipality is
required to establish special circumstances.
[22] Any SDP submitted for assessment on or after 11 September 2023 would
be assessed in terms of the Integrated Scheme, which provides:
‘When a Land Unit is developed for residential purposes where more than one Dwelling Unit
is permitted, the owner shall provide 24m2 of Private Open Space per Dwelling Unit.’6
[23] The first SDP provides for 420 dwelling units. The Integrated Scheme
would require the provision of private open space of 10 080m2. As mentioned,
Siyalanda tendered and provided for 11 937m2 and the municipality sought to
impose 16 884m2. The Integrated Scheme requires a substantially reduced extent
5 Sections 24 and 26(1)(b) of SPLUMA.
5 Sections 24 and 26(1)(b) of SPLUMA.
6 Regulation 66(1)(a) of the Integrated Scheme; ‘Private Open Space’ is defined in regulation 1.
12
of open space compared to that contended for under the Scheme . Siyalanda
argued that it seems highly improbable that any developer which had submitted
an SDP prior to 11 September 2023 and which SDP has yet to be approved, would
not simply have withdrawn its SDP and re-submitted it in terms of the Integrated
Scheme. There appears to be some force in such argument although I make no
finding on the facts underpinning that submission, these being motion
proceedings. I do, however, find that the municipality has failed to establish that
the full court judgment has a material impact for other developers, as it has
claimed.
[24] Siyalanda has complied with the interim agreement and proceeded with its
development in terms of the second SDP . As such, and unlike other developers
who may have pending applications under the Scheme, it cannot simply withdraw
the first SDP and replace it with an amended SDP i n terms of the Integrated
Scheme. But for the interim agreement, that option might have been available to
it. It follows that the outcome of the matter in this Court would be of interest only
to the municipality and Siyalanda where the Scheme is no longer of application.
[25] The municipality’s other contention for the existence of special
circumstances was that the potential owners of units in Siyalanda’s development
will be adversely affected if open space, calculated in terms of the Scheme, is not
provided. This argument does not bear scrutiny given the open space
requirements of the Integrated Scheme which, it is common cause, would require
less open space than has been tendered by Siyalanda in the first SDP. Plainly, by
adopting the Integrated Scheme, the municipality considered that open space
calculated in terms thereof would be adequate for developments such as that of
Siyalanda. In the circumstances, the pursuit by the municipality in this application
of open space in the development greater than that to which it would be entitled
13
under the prevailing Integrated Scheme or that tendered by Siyalanda in the first
SDP, is inexplicable.
[26] For these reasons I conclude that there is no merit in either of the bases
relied on by the municipality in support of its averment that an appeal would be
of importance to the parties or the public. A case for the existence of special
circumstances is not established in this regard. The only remaining question i s
whether the prospects (assum ing, without deciding , that reasonable prospects
exist) are so strong that a manifest injustice might result if special leave to appeal
were to be refused. Such a finding would constitute a special circumstance which
would warrant the granting of special leave.
[27] To succeed on this basis for special leave, the municipality must establish
that the full court erred so fundamentally in its interpretation of the relevant
statutory provisions, that leave to appeal must be granted to avoid obvious
injustice.
[28] In Independent Community Pharmacy Association v Clicks Group Ltd and
Others,7 the Constitutional Court cautioned that:
‘Although interpretation has to start somewhere, the search for the meaning of a statutory
provision is a unitary exercise, taking into account the text to be interpreted, the broader context
in which it appears, an d the purpose of the provision. The role which these components play
is, in turn, modulated by constitutional values, in particular the injunction in section 39(2) of
the Constitution that, when interpreting legislation, every court must promote the spirit, purport
and objects of the Bill of Rights. A “plain meaning”, based on no more than the disputed text,
does not enjoy a primacy which other considerations must fight to displace.
. . . Interpretation, as I have just said, is a unitary exercise in which a ll relevant factors are
considered holistically. . . An exposition of multiple factors has to be set out sequentially. The
7 Independent Community Pharmacy Association v Clicks Group Ltd and Others [2023] ZACC 10; 2023 (6)
BCLR 617 (CC) paras 238 and 239 (Clicks Group) which affirmed this Court’s path-finding judgment in Natal
Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012
(4) SA 593 (SCA) para 18.
14
exposition is the end-product of having wrestled with all the relevant factors and settled upon
an interpretation.’
[29] The regulation at the heart of this application is 9.3.1.2, which reads:
‘When an erf is created for residential purposes where more than one dwelling unit is permitted,
whether by subdivision or rezoning, the owner shall provide, free of charge, open spac e in the
ratio of 54m 2 in respect of every dwelling unit in excess of six, or 14m 2 in respect of every
habitable room in excess of 20-4, which may be erected on the erf.’ (Emphasis added.)
[30] The municipality contend ed that the property was created through the
consolidation of subdivided portions of a parent erf and zoned for residential
purposes where more than one dwelling is permitted. This, it contended, triggers
the obligation established in regulation 9.3.1.2 to p rovide open space free of
charge in the prescribed ratio. Siyalanda , for its part, argued that regulation
9.3.1.2 does not apply to the property because its history shows that the property
was not established for multiple dwelling use by subdivision or rezoning.
[31] The scheme is made up of a number of parts. Part II contains extensive
definitions; Part III regulates ‘use of land and buildings’; Part IV prescribes
‘development parameters ’; Pa rt V provides for ‘subdivision of land ’; Part VI
deals with ‘general amenity and convenience ’; and Part VII contains
‘miscellaneous’ matters.
[32] The subdivision of land is dealt with entirely in regulation 9 of the Scheme.
It consists of regulation 9.1 ‘Applications to subdivide land ’; regulation 9.2
‘Areas of subdivision’; regulation 9.3 ‘Provision of open space ’; regulation 9.4
‘Areas within flood lines’; and regulation 9.5 ‘Urban aesthetics on limited access
roads’. It is immediately apparent that each of regulations 9.1, 9.2, 9.4 and 9.5
deals exclusively with procedures relating to subdivision , or matters arising in
deals exclusively with procedures relating to subdivision , or matters arising in
relation to the cadastral subdivision of land being the formal division of land into
15
separate erven. This contextual placement is not merely a matter of organisation.
It provides vital interpretive guidance, consistent with the principles restated in
Clicks Group.
[33] Regulation 9.3 is heade d ‘Provision of Open Space’ and provides in two
subsections for two distinct circumstances of which it is common cause that one
(regulation 9.3.1.1) does not apply to the property. The only circumstance
relevant to the current dispute is in regulation 9.3.1.2. Three interrelated questions
arise in relation to the property , which require interpretation . They are: (a) the
meaning of ‘rezoning’ (b) whether the property was ‘created for residential
purposes ... by subdivision or rezoning’ and (c) the meaning of ‘open space’.
Rezoning
[34] Section 22(1)(a) of LUPO provides:
‘No application for subdivision involving a change of zoning shall be considered in terms of
this Chapter, unless and until the land concerned has been zoned in a manner permitting of
subdivision, in terms of Chapter II.’
[35] It follows that the process of subdivision goes hand in hand with the
rezoning. The parties correctly accepted that a reference to subdivision means
cadastral subdivision. From this it follows that regulation 9.3.1.2 anticipates the
coming into being of a portion of land capable of being registered in the Deeds
Registry by means of a subdivision of land . The subdivided portions will, on
subdivision, become that portion.
[36] Where land is rezoned in a manner permitting subdivision, it ma y be said
to have been ‘created’ in that manner. Accepting that the purpose of regulation 9
is to regulate the use of rights in the context of subdivision, the meaning to be
ascribed to rezoning in regulation 9.3.1.2 is ‘rezoning’ in a manner permitting
16
subdivision as this would be the only means by which the erf could be created for
residential purposes.
Was the property ‘created for residential purposes. . . whether by subdivision or
rezoning’?
[37] The material facts relevant to the creation of the property are, in summary,
the following: In 1988, seven erven owned by the erstwhile Port Elizabeth
Municipality, including what in due course became erf 3112, were rezoned for
special purposes including f or residential use. During early 2000, the zoning of
those same erven was amended to special purposes No. 407, with the primary
uses being ‘hotel/s, recreation/resort facilities, tourist orientated and incidental
retail facilities and dwelling units/reside ntial accommodation ’. Neither of the
foregoing rezoning processes constituted rezoning in a manner permitting
subdivision. The undisputed factual history reveals that the property came into
existence upon the consolidation of erf 3112 (acquired by Siyaland a from the
municipality during 2002) with erf 3782 purchased by it from the municipality in
2008. The consolidation did not involve either a subdivision or a rezoning.
[38] Consequently, the undisputed history of the property does not support the
conclusion sought to be drawn by the municipality: contrary to what the
municipality aver s, the property was not created for residential purposes by
subdivision or rezoning. It follows that the municipality’s contention that
regulation 9.3.1.2 applies to the development, is unconvincing. Even if one were
to disagree with the full court’s prefe rred interpretation and application of
regulation 9.3.1.2, I do not consider it so unreasonable or patently flawed as to
give rise to a grave injustice were special leave to appeal not permitted.
17
The meaning of ‘open space’
[39] The remaining question is whether regulation 9.3 is of any assistance to the
municipality. Regulation 9.3 deals with the provision of open space. The term
‘open space’ is not defined in the Scheme, although ‘private open space ’ and
‘public open space ’ are defined. ‘Private open space ’ is defined as ‘any land
zoned for private use as a ground for sports, play, rest or recreation or as an
ornamental garden or pleasure ground ’. ‘Public open space ’ is defined as ‘any
land zoned for use by the Public as an open space, park, garden, playground,
recreation ground or square’.
[40] Regulation 9.3.1.2 is subject to the provisions of regulation 9.3. The latter
regulation deals with instances where the council is either of the opinion that a
lesser extent of open spac e is to be provided than that required in terms of
regulation 9.3.1, or where it requires open space in excess of the extent to be
provided in terms of 9.3.1. Regulation 9.3.2.4(ii) provides that in the case of an
erf for residential purposes where more than one dwelling unit is permitted (ie the
circumstances referred to in 9.3.1.2), compensation is to be paid on transfer of the
open space to the council.
[41] It is of some moment that the formulae in sub-regulation 9.3.2.3(ii)(a) and
(b) are capable of calculation only with reference to subdivision. It follows that
the term ‘open space ’ in regulation 9 must be ‘public open space ’ as the
stipulation that it should be provided without charge would otherwise be
superfluous and meaningless. Section 28 of L UPO provides that where a
township or cluster housing scheme is created by subdivision in terms of section
28 of LUPO, 8 the ownership is to be provided to the local authority without
compensation.
8 ‘28. Ownership, on subdivision, of public streets and public spaces – The ownership of all public streets and
public places over or on land indicated as such at the granting of an application for subdivision under socio -
economic 25 shall, after the confirmation of such subdivision or part thereof, vest in the local authority in whose
18
[42] The municipality placed much reliance on regulation 11.1.2 (x) of the
Scheme which requires a SDP to show ‘the extent and position of any Open Space
to be provided’. It argued that properly interpreted and read with regulation 9.3 it
could only mean private open space as the open space required by the
municipality is confined to the private use of the residents of the development.
This interpretation disregards the history of the property which reveals that it was
formed by the consolidation of previously subdivided land and thus does not
resort under Part V of th e Scheme which deals exclusively with the subdivision
of land.
[43] There is no provision in the Scheme for a concept such as ‘communal open
space’ as one would find within a sectional title development scheme in terms of
the Sectional Titles Act, 95 of 1986. Siyalanda’s property is not a sectional title
development scheme. The open space which the municipality requires in relation
to the proposed de velopment in the first SDP is neither private nor public open
space.
[44] It appears that the town planning officials of the municipality have for
years been working around this lacuna in the Scheme by formulating informal
working documents such as the guidelines.
[45] I embarked upon this analysis in order to establish whether the prospects
of success are so strong, that a refusal of leave would result in a manifest denial
of justice. For the reasons advanced herein, I am unable to so conclude or to find
that the full court was manifestly incorrect in coming to the conclusion that the
Scheme does not provide for the provision of open space.
area of jurisdiction that land is situated, without compensation by the local authority concerned if the provision of
the said public streets and public places is based on the normal need therefor arising from the said subdivision or
is in accordance with the policy determined by the Administrator, from time to time, regard being had to such
need.’
19
[46] Where does such a finding leave the parties? The municipality will be
required to consider the first SDP without reference to regulation 9.3. 1.2 of the
Scheme as the full court found that it has no application to the facts of this case
and this Court has refused special leave to appeal that decision . The extent of
open space tendered and proposed by Siyalanda in respect of the first SDP was
11 937m2. This extent was proposed by Siyalanda on the basis that regulation
9.3.1.2 did not apply. This has now effectively been confirmed by the refusal of
special leave. The parties must now fall back on the interim agreement, in terms
of which the municipality would make a final decision regarding the extent of
open space to be provided by Siyalanda.
Conclusion on special circumstances and order
[47] It follows that the municipality has not met the stringent requirements set
for special leave to appeal to be granted.
[48] The following order is granted:
The application for special leave to appeal is dismissed with costs.
________________________
I OPPERMAN
ACTING JUDGE OF APPEAL
20
Appearances:
For applicant: RG Buchanan SC
Instructed by: W Langson and Associates Inc., Gqeberha
Webbers Attorneys, Bloemfontein
For respondent: JG Richards SC
Instructed by: MC Botha Inc., Gqeberha
Honey Attorneys, Bloemfontein.