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[2014] ZAWCHC 3
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Capendale and Another v Municipality of Saldanha Bay and Others, In Re; Capendale and Another v 12 Main St, Langebaan (Pty) Ltd and Others (6580/2012 , 840/2012) [2014] ZAWCHC 3 (29 January 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
REPORTABLE
Case no: 6580/2012
(and Case no: 840/2012)
In the matter between:
ARTHUR EDWIN
CAPENDALE
..........................................................................
First
Applicant
THE FIONA
TRUST
...........................................................................................
Second Applicant
and
MUNICIPALITY OF
SALDANHA
BAY
...........................................................
First Respondent
12 MAIN STREET,
LANGEBAAN (PTY) LTD
............................................
Second
Respondent
ABSA BANK
LIMITED
......................................................................................
Third Respondent
and
Case no: 840/2012
In the application of:
ARTHUR EDWIN
CAPENDALE
.........................................................................
First Applicant
MEL
RICHTER
....................................................................................................
Second
Applicant
and
12 MAIN ST,
LANGEBAAN (PTY)
LTD
..........................................................
First
Respondent
MUNICIPALITY OF
SALDANHA
BAY
........................................................
Second
Respondent
ABSA BANK
LIMITED
......................................................................................
Third
Respondent
JUDGMENT
: APPLICATION FOR LEAVE TO APPEAL
WEDNESDAY
29 JANUARY 2014
GAMBLE, J:
[1]
On 30 October 2013 this Court granted the
relief ultimately sought by the Applicants (“Capendale”)
against the Municipality
of Saldanha arising out of the building
works being conducted on the premises of 12 Main Street Langebaan
(Pty) Ltd (“Van
der Merwe”).
[2]
On 20 November 2013 Van der Merwe lodged an
application for leave to appeal to the Supreme Court of Appeal
against the order in
a document containing some 34 paragraphs and
running to 13 pages.
[3]
The application for leave to appeal was
heard on 12 December 2013, the day before the end of the last term of
2013. At the hearing
Van der Merwe’s counsel indicated that he
was not familiar with the provisions of sec 17 of the Superior Courts
Act 10 of
2013 (“the Act”) and when questioned by the
Court in regard to the import thereof, requested an opportunity to
file
a written note in response to the Court’s query. Judgment
on the application for leave to appeal was accordingly reserved.
[4]
On 13 December 2013 counsel for Van der
Merwe filed a note regarding the said section and counsel for
Capendale replied thereto
on 18 December 2013. The Court is indebted
to counsel for these additional submissions.
[5]
As both counsel point out in their
respective notes, the provisions of sec 17, contained as they are in
a statute which came into
operation fairly recently (23 August 2013),
have not yet been dealt with in any reported cases.
[6]
Section 17(1) of the Act reads as follows:
17.
Leave to Appeal
“
(1)
Leave to appeal may only be given where the Judge or Judges
concerned are of the opinion that –
(a) (i) The appeal would have a reasonable
prospect of success; or
(ii)
There is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b)
The decision sought on appeal does not fall within the ambit of sec
16(2)(a); and
(c)
Where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.”
[7]
Section 16 of the Act deals with “A
ppeals
Generally
” and sec 16(2)(a)
is to the following effect:
“
16(2)(a)(i)
When at the hearing of an appeal the issues are of such a nature
that the appeal sought will have no practical effect
or result, the
appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be
determined without reference to any consideration of costs.”
[8]
It is common cause that sections
17(1)(a)(i) and (ii) are to be read disjunctively in light of the
word ”
or”
at the end of sub-para (i) and after the semi-colon therein. The
effect of this is that, even where there are not reasonable prospects
of success on appeal, leave may be granted in circumstances where
there is another “
compelling
reason
” (such as conflicting
judgments) on the point in issue.
[9]
Save for the aforementioned disjuncture, in
my view, sec 17(1) is to be interpreted conjunctively and in an
incremental fashion
with the relevant factors to be considered one
after the other.
[10]
Accordingly, reasonable prospects of
success alone are not sufficient to warrant the referral of the
matter to an appellate court.
The trial court must then turn to sec
16(2)(a) of the Act and enquire whether the outcome of the proposed
appeal falls within the
ambit of that section. If it does not, the
trial court must then turn to sec 17(1)(c).
[11]
A case falling within the ambit of sec
16(2)(a) will have the result that, even though there may be
reasonable prospects of success,
an appeal will be denied if the
issue is moot: the decision sought on appeal having “
no
practical effect or result”.
In
coming to this decision the trial court will only have regard to the
question of costs in exceptional circumstances in evaluating
the
question of mootness.
[12]
If the outcome of the order sought on
appeal is, however, still a live issue, the trial court is enjoined
by sec 17(1)(c) to then
consider whether the proposed appeal will
dispose of all the issues in the case. If it is found that this
result will not ensue,
the trial court may nevertheless grant leave
if a positive decision on appeal would otherwise result in “
a
just and prompt resolution of the real issues
”.
[13]
Applying the
Natal
Pension Fund
case
[1]
,
a court will apply a purposive approach to the interpretation of this
section. Adopting such an approach, one is therefore driven
to
conclude that the Legislature intended that the function of courts of
appeal was to be “
results-driven
”
and that the trial court was required to carefully consider whether a
hearing on appeal would ultimately lead to a disposal
of the real
issues between the parties.
[14]
It will be seen, too, that the Legislature
intended that the function of the Supreme Court of Appeal was to be
limited to cases
genuinely warranting the attention of that Court,
and then only in circumstances in which the decision sought to be
appealed against
“
involves a
question of law of importance
”,
either because it involved a question of law of general importance,
or because there are differences of opinion which require
to be
resolved, or the administration of justice requires a decision by
that Court (See sec 17(6)(a)).
[15]
The filtering process of careful evaluation
as to whether the matter should enjoy Supreme Court of Appeal
consideration is emphasised,
for example, in sec 16(2)(b) of the Act
which empowers that court to intervene
mero
motu
in circumstances where leave has
been granted by the trial court, and where the Judges of the Supreme
Court of Appeal consider
that the matter is effectively moot, and
that the appeal should be dismissed without more.
[16]
Considering these provisions of the Act in
their general context, it seems to me that it is no longer “
business
as usual
” (to adopt a phrase
employed by the Supreme Court of Appeal in a completely different
context
[2]
)
when it comes to the intended prosecution of an appeal. A
matter must meet the strict criteria laid down by the Legislature
before it will be referred to the Supreme Court of Appeal, one of the
most important considerations undoubtedly being the practice
of
pursuing an appeal for essentially dilatory purposes. The Act is a
bold step by the Legislature to limit unnecessarily protracted
litigation, a state of affairs which would tend to bring the
administration of justice into disrepute in the eyes of the general
public.
[17]
Turning then to the facts of the present
case, I am not persuaded that Van der Merwe has reasonable prospects
of success in persuading
the Supreme Court of Appeal (being the Court
to which he wishes his appeal should be referred) that the orders
made reviewing the
Municipality’s decisions in paras 2 and 3 of
this Court’s order of 30 October 2013 were wrong. I accordingly
stand
by the reasons given in support of that judgment.
[18]
But, even if it were to be assumed that Van
der Merwe in fact had reasonable prospects in that regard, in my view
a decision on
appeal overruling either (or both) of paras 2 and 3 of
this Court’s order, is not likely to bring an end to the
litigation
between these neighbours which has been on-going since
2010: It will not be “
the
end of the affair
”, as it were.
[19]
Success on appeal for Van der Merwe will
not
per se
permit him to resume the building operations which were halted in
terms of the interim interdict granted by Davis, J in January
2012.
Having subsequently agreed to the setting aside of the November 2011
building plans, Van der Merwe must now instruct his
architect to go
back to the drawing board and prepare new plans which must comply
with the requirements of the National Building
Regulations and
Building Standards Act, 103 of 1977 (“the NBRA”).
[20]
The provisions of the NBRA, in turn, will
have to be considered in the context of the current Zoning Scheme
Regulations applicable
to Langebaan i.e. those amended in 2000. That
zoning scheme currently requires a land surveyor’s certificate
which attests
to the “
highest
point of natural ground level
”,
from which the proposed height of the new structure is to be
measured. The Pinker certificate which Van der Merwe evidently
hoped
could be relied upon if he was successful in persuading the Court of
Appeal to overrule para 3 of this Court’s order
was issued in
1998 and relies upon “
die hoogste
punt van die oorspronklike grondlyn op of binne die boulyne”
: the document was issued before the commencement of the current
zoning scheme with its differing provisions relating to the
measurement
of the height of buildings in Langebaan and, further,
refers to the
original
ground level rather than the
natural
ground level.
[21]
I agree with counsel for Capendale that the
only way in which the matter could have been resolved permitting the
Municipality to
accept the Pinker certificate in its evaluation of
the new set of plans, was if Van der Merwe had successfully sought
mandatory
relief by way of a counter-application to determine the
permissible height restriction pertaining to the property, or, to
direct
the Municipality to consider the Redelinghuys affidavit and
the Pinker height certificate in any future planning related
decisions.
[22]
At the commencement of the hearing Van der
Merwe’s counsel belatedly indicated his client’s
intention to bring a counter-application
for declaratory relief
seeking an order determining the permissible height restriction on
the property. However, this counter-application
never saw the light
of day.
[23]
In the absence of any such interdictory
relief which effectively compels the Municipality to accept the
previous height determination,
the Municipality will henceforth have
to consider all plans submitted to it in terms of the current zoning
scheme, the NBRA and
its regulations.
[24]
In the additional note submitted by counsel
for Van der Merwe it is conceded that without being able to rely on
the Pinker certificate
and the Redelinghuys affidavit “
there
is no real prospect of plans that provide for a third storey to be
added onto the existing structure being approved, no matter
how small
the footprint”.
That concession
by counsel demonstrates really what is at the heart of this case: can
Van der Merwe muster sufficient evidence to
persuade the Municipality
that the ground level which is visible on site is not the “
natural
ground level”.?
[25]
As the various affidavits filed in support
of each party’s case demonstrate, there is a plethora of expert
evidence either
way to justify each party’s view. The expert
evidence which supports the existence of a dune on the property
before Van der
Merwe acquired it together with the evidence which
will enable Van der Merwe’s experts to advance a case for a
higher natural
ground level, is still available to him and can be
placed before the Municipality when the time therefor arises.
[26]
In my view therefore a decision on appeal
setting aside the order made in terms of para 3 will not dispose of
all the issues in
the case and will not lead to a just and prompt
resolution of the real issues between the parties.
[27]
Similarly, success on appeal in relation to
paragraph 2 of the Court’s order would only permit
reconstruction of the storeroom/sunroom
which was erected in terms of
the 2000 plans. That structure was voluntarily demolished by
Van der Merwe in 2010 at his own
risk. He manifestly does not
wish to erect a similar structure on the property and so success on
appeal in relation to that
part of the order will similarly not meet
the requirements of sec 17(1)(c) of the Act.
[28]
In the circumstances the application for
leave to appeal is dismissed with costs.
GAMBLE, J
[1]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA)
[2]
S v Malgas
2001
(1) SACR 469
(SCA) at 476g