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[2015] ZAWCHC 13
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George Municipality v Greyvenstein (A368/2013) [2015] ZAWCHC 13 (10 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A368/2013
DATE:
10 FEBRUARY 2015
In
the matter between:
GEORGE
MUNICIPALITY
....................................................................................................
Appellant
And
PHILLIP
RUDOLPH
GREYVENSTEIN
...........................................................................
Respondent
Before:
BAARTMAN et BOQWANA JJ
JUDGMENT
DELIVERED ON 10 FEBRUARY 2015
BOQWANA,
J
Introduction
[1]
The appellant
brought an application before the George Magistrates’ Court for
an order compelling the respondent to remove
illegal garage doors
installed onto the storeroom and washroom built on his property and
to align the structure to the building
plans approved by the
appellant. The magistrate dismissed the application with costs in a
short judgment he gave, dated 10 October
2012. In brief, the
magistrate found that the double garage door was on the approved plan
which was attached to the respondent’s
answering affidavit and
referred to as ‘PRG1’. He found in favour of the
respondent because no other plans were placed
before the court. The
appellant appeals against that judgment.
[2]
The appeal was
preceded by an application for condonation brought by the appellant
for its non-compliance with the Rules of Court
in noting and
prosecuting the appeal. The application is opposed by the respondent.
I first deal with the condonation application.
Condonation
application
[3]
It is the
appellant’s case that the delay in noting and prosecuting the
appeal was caused by the appellant’s attorney,
Frances Schrӧter
(‘Schrӧter’), who deposed to an affidavit in
support of the application for condonation.
[4]
In
the first instance, the appellant admittedly failed to comply with
Rules 51(3) and 51 (4) of the
Magistrates’
Courts Rules
[1]
which
stipulate as follows:
‘
(3)
An appeal may be noted
within 20 days
after the date of a judgment appealed against or within 20 days after
the registrar or clerk of the court has supplied
a copy of the
judgment in writing to the party applying thereof
,
whichever period shall be longer.
(4)
An appeal
shall be noted by delivery of notice, and
,
unless the court of appeal otherwise order,
by
giving security for the respondent’s costs of appeal to the
amount of R1000:
Provided that no security shall be required from the State or, unless
the court of appeal otherwise order, from a person to whom
legal aid
is rendered by a statutorily established legal aid board.’
(Own
emphasis)
[5]
In the present
matter the notice of appeal was delivered on 14 December 2012 and
security paid on 19 December 2012. The notice of
appeal and payment
of security were not done simultaneously. The noting of the appeal
was effectively done on 19 December 2012
if one has regard to the
requirements of Rule 51(4).
[6]
The judgment
of the magistrate is dated 10 October 2012. Schrӧter allegedly
received it on 25 October 2012. It is common cause
that the judgment
was not handed down in open court. It appears from the reading of the
transcribed record of the proceedings that
judgment was reserved
after the hearing of the matter on 09 October 2012. The court
informed the parties that they would be notified
as soon as possible
of the finding of the court. Schrӧter alleges that she was not
aware of the existence of the written
judgment dated 10 October 2012
and found out about it by chance from the respondent’s attorney
who furnished her with a copy
of the judgment
via
email on 25 October 2012.
[7]
According to
Schrӧter the magistrate usually gives written judgments which
are deposited in the pigeonholes of different attorneys
concerned,
situated at the office of the clerk of the court. Both she and the
respondent’s attorneys have such pigeonholes.
Her contention is
that she was and is still of the opinion that a proper judgment had
not been given because it was not done in
open court. Based on that
view she was not sure how to handle the judgment, having regard to
the prescribed 20 day period by which
the notice of appeal had to be
filed. She eventually decided to rather take the safe option and
continue with the filing of the
appeal instead of engaging the
magistrate about delivering the judgment in open court. She then
considered the judgment, and after
receiving instructions from her
client, she briefed an advocate, Mr Schmidt, on 22 November 2012, to
prepare a notice of appeal
which was served on the respondent’s
attorneys and the magistrate on 14 December 2012.
[8]
It can be
construed from Schrӧter’s conduct that she accepted the
judgment as valid on the appellant’s behalf
as she failed to do
anything to challenge its status. She continued to note and prosecute
the appeal instead of insisting that
the judgment be delivered in
open court. Whilst that is so, Mr Schmidt has invited this Court to
give a view on the practise of
placing judgments in pigeonholes
instead of delivering those in open court. He submitted that in his
view, Schrӧter’s
view was correct that a judgment did not
exist as it was not delivered in open court.
[9]
In my view, although the judgment
was not given in open court or Schrӧter supplied with a copy of
the written judgment by
the clerk of the court, she became aware of
the written judgment after she received it from her colleague, the
respondent’s
attorney. If she was unsure of the status of the
judgment, she should have enquired from the clerk of the court or the
magistrate
immediately, which she failed to do. She also failed to
obtain an opinion from counsel about the validity of the judgment, at
least
early on. Doubts remained in her mind.
[10]
The
only authority Mr Schmidt could rely on to as authority for his
proposition on this issue was that of
Snyman
v Crouse en ‘n Ander
[2]
where
it was held that ‘judgment’ only takes place when
delivered in open court. It should be noted that the
Snyman
matter
dealt with action proceedings. Another key distinguishable factor is
that in the
Snyman
matter,
the magistrate ‘orally’ conveyed the decision to the
clerk of the court with an instruction to convey the decision
to the
parties. In the present instance a written judgment existed.
[11]
In
the decision of
Main
Street 421 (Pty) Ltd v Goldfields Development (Pty) Ltd
[3]
,
the
Court set out general legal principles applicable in our courts
relating to recordal of judgments. Key to the principles
extrapolated by that court, albeit
obiter
,
was a principle that a judgment must be delivered in open court
although not necessarily by the judge or magistrate who prepared
it.
In support of its view the Court referred to section 16 of the
Supreme Court Act, 59 of 1959 and section 5 of the Magistrates’
Courts Act and LAWSA, vol 3, part 1, paragraph 323. It also made
reference to the fact that the orders of the Supreme Court of
Appeal
and Constitutional Court are handed down in open court and only after
the legal representatives of the parties have been
notified of the
date and time to allow them to note judgment. The court held a view
that judgments and orders are meant to create
certainty.
[12]
Section 16 of the Supreme Court Act,
59 of 1959, reads as follows:
‘
16
Proceedings to be carried on in open court
Save
as is otherwise provided in any law, all proceedings in any court of
a division shall, except in so far as any such court may
in special
cases otherwise direct, be carried on in open court.’
[13]
An
equivalent provision (sec 32) in the new Superior Courts Act
[4]
reads as follows:
‘
Save
as is otherwise provided for in this Act or any other law, all
proceedings in any Superior Court must, except in so far as
any court
may in special cases otherwise direct, be carried on in open court.’
[14]
Section
5 (1) of the Magistrates’ Courts’ Act
[5]
reads as follows:
‘
5
Courts to be open to the public, with exceptions
(1)
Except where otherwise provided by law, the proceedings in every
court in all criminal cases
and the
trial of all defended civil actions shall be carried on in open
court
, and recorded by the presiding
officer or other officer appointed to record such proceedings.’
(Own emphasis)
[15]
It
must be noted that
section
5 (1) of the Magistrates’ Courts Act deals with defended civil
actions. Despite the above, there is seemingly no rule
that the
delivery of a judgment must take place in open court, with regards to
application proceedings in the magistrates’
court. Having said
that, one must take note of the Civil Practice Directive for the
Regional Courts of South Africa
[6]
,
in which it is stated, at clause 8.2, that judgment delivery should
be done in open court. That clause reads as follows:
‘
8
Reserved judgements
8.1
Judgments may not be reserved sine die and the presiding officer
shall indicate the date on which judgment will be delivered
or handed
down which should be within a reasonable time from date of hearing
the matter.
8.2
Judgment delivery
should
be done in open court.’
[16]
Although the
word ‘should’ has been used, indicating that the
requirement is not peremptory, the practise noted from
the above
civil practice directive should be encouraged.
[17]
The fact that
there is a written judgment in this present matter, which
recorded
the outcome of the application proceedings, distinguished this matter
from the
Snyman
and
Main
Street 421
decisions (which found that oral conveyance of the result to the
registrar or a clerk or failure to record the judgment respectively,
meant that there was no judgment to be acted upon). Therefore, the
fact that the magistrate did not deliver his judgment in open
court
did not invalidate the status or existence of his written judgment as
there is no rule with respect to magistrate courts
requiring delivery
of judgment in open court, in applications.
[18]
Whilst that is
so, the practice of placing reserved judgments in pigeonholes should
not be condoned. The civil practice directive
(coupled with the rule
applicable in trials I have referred to above) should be followed in
applications
in the magistrates’
court
as well. This
would avoid uncertainties such as the one alleged by Schrӧter
in this matter.
[19]
Reverting to
the appellant’s failure to note th
e
appeal timeously. Apart from being uncertain about the validity of
the judgment, there is no explanation from Schrӧter as
to why
she only briefed counsel on 22 November 2012, when she received a
copy of the written judgment on 25 October 2012 from her
colleague.
In addition to that, it took a further 16 days to finally note the
appeal as security was only paid on
19
December 2012. Furthermore, no explanation is proffered as to why the
security was not paid simultaneously with the delivery
of the notice
of appeal as prescribed by Rule 51(4) of the Magistrates’
Courts Rules.
[20]
Having said
all that, if one has regard to all other factors such as the degree
of lateness, which is not excessive on this aspect,
and lack of
prejudice to the respondent, I see no reason why the late noting of
the appeal should not be condoned.
[21]
Turning to the
prosecution of the appeal. The appellant failed to prosecute the
appeal within 60 days after noting it and to make
an application to
the registrar, within 40 days of noting the appeal, for the hearing
of the appeal as required in Rules 50(1)
and 50(4) of the Uniform
Rules of Court.
[22]
The reason
given for this failure is that Schrӧter misunderstood Rule
51(8) of the Magistrates’ Courts by thinking that
she had to
wait for a statement from the magistrate before proceeding any
further with the appeal. She accordingly held the continuation
of the
matter in abeyance whilst waiting for the Magistrate’s
statement. She professes to have done this because she was
hurried
and under stress. She states that her interpretation of Rule 51(8)
was incorrect. Mr Schmidt was however not convinced
that Schrӧter
was wrong. Rule 51(8) stipulates that:
‘
8(a)
Upon delivery of a notice of appeal the relevant judicial officer
shall within 15 days thereafter hand to the registrar or
clerk of the
court a statement in writing showing
(so
far as may be necessary having regard to any judgment in writing
already handed by him or her)
-
(i)
the facts he
or she found to be proved;
(ii)
the grounds
upon which he or she arrived at any finding of fact specified in the
notice of appeal as appealed against;
(iii)
his or her
reasons for any ruling of law or for the admission or rejection of
any evidence so specified as appealed against.’(Own
emphasis)
[23]
In
terms of this rule the magistrate is not absolutely compelled to give
further reasons when he or she has delivered a judgment
which he or
she considers sufficient. However, a practice has developed where a
magistrate when served with a notice of appeal
would issue a
statement that he or she abides by his or her judgment and has
nothing further to add. The remarks of Hoexter JA
in
R
v Bezuidenhout
[7]
are pertinent to this case where he said the following:
‘
The
magistrate is not bound to give reasons when he pronounces verdict.
He may do so, but that will not relieve him of the duty
of giving
written reasons when an appeal has been noted.
If
he has given adequate written reasons when pronouncing verdict it
would no doubt be a sufficient compliance with the Rule to
state in
writing that he adopts those reasons and has nothing to add to them.
But the fact that the magistrate has given reasons when pronouncing
verdict cannot debar him from adding to those reasons whatever
may be
necessary when he complies with the Rule after an appeal has been
noted.’
(Own
emphasis)
[24]
In
the case of
S
v M
[8]
where
the magistrate had stated that he did not wish to add anything to his
ex
tempore
judgment. Whilst finding the
ex
tempore
judgment
to be ‘
quite
adequate for the purpose of indicating broadly what his approach to
evidence was
,’
[9]
the appeal court criticised the magistrate for not providing further
reasons pertinent to the grounds for appeal raised.
[10]
[25]
If one has regard to the case law as
well as the practice that has developed, Schrӧter’s
expectation of a statement
or further reasons was reasonable in my
view. I am however of the view that nothing in that Rule compels a
magistrate to file such
statement if he or she regards his or her
written judgment to be sufficient.
[26]
In
my view, if a party does not receive a statement as prescribed by
that rule after 15 days, it is incumbent upon them to either
enquire
timeously from the magistrate or from the clerk of the court, or, if
in doubt, to continue with the process by complying
with the
provisions of Rules 50 (1) and 50(4) of the Uniform Rules of
Court
[11]
timeously. Rule
50(1) states that:
‘
(1)
An appeal to the court against the decision of a magistrate in a
civil matter
shall be prosecuted within
60 days after the noting of such appeal
,
and unless so prosecuted it shall be deemed to have lapsed.’
[27]
Whilst Rule
50(4) further provides as follows:
‘
(4)
(a) The appellant shall,
within 40 days
of noting the appeal, apply to the registrar in writing
and with notice to all other parties
for
the assignment of a date for the hearing of the appeal
and
shall at the same time make available to the registrar in writing his
full residential and postal addresses and the address
of his attorney
if he is represented.
(b)
In the absence of such an application by the appellant, the
respondent may at any time
before the expiry of the period of 60
days referred to in subrule (1)
apply for a date of hearing in
like manner.
(c)
Upon
receipt of such an application from appellant or respondent, the
appeal shall be deemed to have been duly prosecuted
.’
(Own emphasis)
[28]
It
was only in early August 2013 that Schrӧter enquired from the
clerk of the court and that is when she realised that she
made a
mistake by waiting for a statement from the magistrate. There is no
explanation as to why she waited for more than seven
months to make
enquiries from the clerk of the court.
[12]
This conduct is, in my view, unacceptable and tardy.
[29]
Having
discovered in August 2013 about her alleged mistake, Schrӧter
and/or her firm of attorneys waited for another month
before they
sent the record of appeal to the respondent’s attorneys on 5
September 2013, to prosecute the appeal. Whilst
Schrӧter’s
interpretation of the rule is excusable, her failure to make
enquiries for months cannot be. She has
acknowledged that her
conduct amounted to negligence. She however submits that such conduct
should not be imputed to the appellant.
It is trite law that
negligence on the part of the attorney will not necessarily exonerate
the litigant.
[13]
In
Finbro
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein and
Others
[14]
the
Court held that there is a limit beyond which a litigant cannot
escape the results of his attorney’s lack of diligence
or
insufficiency of the explanation tendered. The litigant is at least
required to explain that none of the ineptitude or remissness
of his
attorney is imputed to himself if reliance is placed on that in
seeking condonation.
[15]
There is no explanation given by the appellant itself regarding the
actions it took to avoid the delays in this matter.
[30]
The
submissions made by Mr Schmidt that the appellant has one legal
advisor, that it is a big public organ that deals with a lot
of
matters is a supposition made from the bar with no supporting
evidence.
[31]
Regard
must also be had to the respondent’s interest in the finality
of the judgment. In
Cairns’
Executors v Gaarn
[16]
the
Court remarked that:
‘
when
a party has obtained a judgment in his favour and the time allowed by
law for appealing has lapsed, he is in a very strong
position, and he
should not be disturbed except under very special circumstances.’
[32]
I have already
found that the explanation given by Schrӧter about her
understanding of the Rule was reasonable. What is not
satisfactory is
her conduct in waiting for more than seven months to enquire from the
clerk of the court about the statement that
she was expecting. The
enquiry however does not stop there; regard must also be had of other
factors such as prospects of success,
the importance of the matter,
and the balance of convenience, before a decision is made on whether
or not condonation should be
granted.
[33]
Mr
Whitehead SC has referred to case law that suggests that in cases
where non-observance of the Rules has been so flagrant and
gross,
condonation should not be granted, whatever the prospects of success
might be.
[17]
I am not
convinced that this case falls within the category of those cases,
and therefore would proceed to deal with the merits
of this case.
Merits
Appellant’s
case
[34]
The
appellant’s case is that during 2010 it received building plans
for approval from the respondent. These plans were accompanied
by an
application for deviation from the appellant’s normal board
policy with regard to garage space on a property zoned
for single
residential use. The board policy makes provision for a maximum of
four garages on a property with a residential home.
The policy
details that if an owner of such property wants to erect more
garages, he must apply for a special concession by the
board.
[35]
The respondent
thus applied for such special concession, as he wanted to erect
garage space on the property for 20 vehicles. The
reason for this was
based on the fact that the respondent is a collector of veteran
vehicles. He wanted to store his collection
of vehicles in the garage
space.
[36]
The house on
the premises is designed in such a way that vehicles could be stored
underneath the building with the residence being
on the top level of
the building. The building plan has a second building (‘an
outbuilding’) indicated as a garden
store and laundry (also
referred to as a store room and washroom in the papers). The board of
the appellant approved the application
for a special concession on 19
October 2011 with the following conditions:
a)
That the
garage facility is limited to the ground floor of the proposed
dwelling;
b)
That the
garage facility may only accommodate or store a maximum of 20
vehicles;
c)
That no
vehicle may be serviced or repaired on site and no dangerous
chemicals or fuels may be stored on site inclusive of equipment,
spare parts, fixtures or tools related thereto;
d)
That in the
event the garaging facility is no longer used for that purpose, a new
application must be submitted to Council for consideration.’(Own
emphasis)
[37]
The dispute
between the parties concerns the outbuilding, indicated as the
laundry/garden store on the plan PRG1. During inspection
on the
respondent’s premises by the appellant’s officials it was
found that the outbuilding was significantly bigger
than on the
original approved plans. It was also noticed by the appellant’s
officials that the structure of the outbuildings
had a garage door.
Given the number of garage facilities and the involved application of
the respondent for concession, it was
clearly put to the respondent
that the outbuilding structure could not be equipped with further
garage facilities. The respondent
was requested to submit ‘as
built’ plans depicting the enlarged outbuilding being built for
which he had no authorisation.
He however submitted new plans with
the outbuilding equipped with a garage door notwithstanding the fact
that it was clearly stated
to him that further garage facilities
would not be considered. These plans were modified during the
approval process after the
appellant’s officials contacted the
respondent’s architect, Da Silva.
On
the insistence of the appellant’s officials, Da Silva amended
the plans to enclose the double garage door and replacing
it
with
a normal entrance door. The amended plan was approved.
[38]
Despite this,
the respondent proceeded to build a storeroom with garage doors
infront contrary to the ‘approved’ plans
(‘amended plans’).
He
was given notice to adhere to the approved plan and the respondent
confirmed in an email dated 21 September 2011, addressed to
Mr S
Carstens of the appellant, that he had complied with the instruction
as follows:
‘
Dear
Mr Carstens
As
per our telephonic conversation we are in the process of bricking up
both openings of the small outbuilding and building in single
door.
The
contractors will be finished by end Thursday 22
nd
September.
As
we have complied with all requests from Town Planning Department
could you please now issue the occupation certificate so we
can move
in.
I
ve (sic) gone to considerable lengths, not to mention cost, to comply
with these requests, and sincerely hope that we can reach
a speedy
resolution.
Should
you so wish you can contact me on 0824773305 or Sharon on 0836611163.
Kind
regards,
Rudolph
Greyvensteyn...’
[39]
The building
became ready for occupation whilst the board was considering the
concession regarding the garages. The respondent was
issued with an
interim occupation certificate whilst the approval for deviation was
still in process, having been given the condition
to remove the
garage doors and close the space. The respondent complied with the
condition placed on him.
[40]
After the
entire building was completed and a final occupation certificate
issued, the respondent once again, contrary to the approvals,
broke
the enclosed door spaces down and installed the garage doors again.
Since October 2011 the respondent has been served with
various
notices. The last being on 17 November 2011. Subsequent to these
notices, the respondent submitted a further application
for approval
of the amended plans with the garage doors currently built on the
outbuilding. He was advised in a final notice dated
7 December 2011
that the plans could not be approved and to once again correct the
illegal structure built on his premises by 22
December 2011. He
failed to comply with that notice and the garage doors built
‘illegally’ are still in place.
[41]
According to
the appellant, this is contrary to the special consent which states
that there may only be 20 vehicles in the main
building on the
premises. The appellant further submits that the respondent is in
violation of the sections 4(1) and 4(4) of the
National Building
Regulations and Building Standards Act 103 of 1977 and section 39(2)
of the Ordinance on Land Use Planning, Cape
Ordinance 15/1985, which
prohibit building without prior written approval of the local
management using land for a purpose not
provided for in the approved
plan.
The
respondent’s case
[42]
The respondent
denies that he is in breach of the approved plans and the law. He
attached to his answering affidavit a building
plan dated 20 January
2011 which depicted a double garage door as well as an extra entrance
as ‘PRG 1’. He admits that
he was informed by the
appellant that he may not use the laundry as a garage. He however
submits that when the appellant was considering
the special consent,
it only had the PRG1 plans with it. According to him the provision
allowing him to store 20 vehicles on the
ground floor of his
residence includes the outbuilding, as it forms part of the
residence. He alleges that for as long as he does
not store more than
20 vehicles at any given stage, he does not violate any provision. He
further denies that he uses the outbuilding
as a garage. He maintains
that he uses the building to perform crafts for which he requires a
larger entrance to let light in.
In addition to that he uses the
facility to store his garden tools and as a laundry.
[43]
He alleges
that after the dispute about the entrance to the outbuilding he
looked at the ‘as built’ plans and noticed
that there was
an undated amendment on the plan which indicated that the garage door
would be closed and that a normal door would
be built on the north
side. He contacted Da Silva, his architect, who informed him that he
had amended the plan without the respondent’s
approval, upon
the appellant’s insistence. Da Silva confirmed this. He denies
that he proceeded to build garage doors contrary
to the approved
plans as the building was already erected when the amendment was
made.
[44]
He concedes
that he complied with the instruction to close the garage and the
walls but contends that he was blackmailed by the
appellant’s
officials who unlawfully withheld the occupation certificate,
‘forcing him to close the garage doors. He
contends that, that
instruction was unlawful. He thus, in accordance with the original
plan, erected the double garage door again
and is refusing to close
it. He denies that he is in violation of the special consent awarded
to him for as long as he does not
store 20 vehicles in the premises.
Discussion on the
merits
[45]
The respondent
raises what may, on the face of it, look like a dispute of fact
regarding which plans are legitimate. The key issue
however revolves
around the amended plans wherein the garage doors under consideration
were removed. Close scrutiny of the allegations
contained in the
answering affidavit reveal that the respondent does not dispute that
the amended plan, enclosing the garage door
existed and that it was
approved. What he contends is that Da Silva amended the plans without
his approval, upon the appellant’s
insistence. The issue of Da
Silva’s authority to amend the plans is a separate issue in my
view, which appears to be a collateral
defence raised as a reason why
the respondent would not comply with what he terms an ‘unlawful
instruction’ by the
appellant. The respondent does not
recognise the amended plans, first because of Da Silva’s lack
of authority and secondly
because he discovered the plans after he
had built the garage doors, according to him, in compliance with the
original, PRG1 plans.
[46]
Accepting that
the respondent had no knowledge of the existence of the amended plan,
until the dispute arose, and/or that the amendment
was made by Da
Silva after the special consent was given, as he suggests, the
question is why would he not challenge the appellant’s
officials’ instruction on the basis of its legality instead of
going through an expensive exercise of removing the garage
doors
installed and bricking the openings. The explanation he offers, that
he went through this expense and effort because he was
‘blackmailed’
and he wanted the occupancy certificate to be granted, is untenable
in my view. In fact his actions coupled
with an email he wrote on 21
September 2011 support a view that he had knowledge of the ‘new
plan’ and agreed with
it. Otherwise on what basis would he
build an unapproved structure and not formally challenge the
‘unlawful requirements’
of the appellant’s
officials?
It
also appears in the final notice dated 7 December 2011 that the
respondent was notified in a letter of 23 September 2011 that
the
garage doors fitted to the outbuilding during construction must be
converted back in line with the
approved
building plans.
[47]
The
respondent’s action of re-building the garage doors after he
had agreed to close them is tantamount to bad faith. It does
not help
him to say that he built those doors according to the original plans
as it is clear that a lot of changes to the building
took place
between the time of the original plan and when he rebuilt the garage
doors. He concedes that further amendments were
made with regard to
the size and the placement of the storeroom and laundry as the
outbuilding was separated from the original
residence and had become
1.28 square metres larger. He however did not annex the amendments
which he alleges were made by hand
on 7 February 2011 to his
answering affidavit. To only refer to PRG1 as the only plan that
existed creates an incorrect impression,
even on the respondent’s
own version.
[48]
Clearly the
building, as borne out by the papers from both sides, looked nothing
like the original plan, PRG1, at the time he re-built
the garage
doors and when the matter was brought before the magistrates’
court.
[49]
This fact is
important because PRG1 formed the basis of the magistrate’s
judgment. From this, it would appear that the magistrate
erred by
simply focusing on PRG1 and not paying due regard to the other facts
contained in the affidavits.
[50]
To
the extent that the respondent disputes the amended plans as not
being the correct or legitimate ones, he did not challenge them
even
when he allegedly became aware of its existence. The approved amended
plans exist. Even if the amendment which Da Silva made,
was done
after the garage doors were rebuilt or after the ‘as built’
plans were prepared, the crucial point is that
that amendment was
approved and ought to have been complied with or challenged
via
the necessary legal channels available if the respondent was unhappy
about how those plans came about. I therefore agree with Mr
Schmidt’s
submission that the principle raised in the
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
[18]
matter,
to the effect that, ‘Until the Administrator's approval (and
thus also the consequences of the approval) is set aside
by a court
in proceedings for judicial review it exists in fact and it has legal
consequences that cannot simply be overlooked’
[19]
,
is relevant in this matter.
The
Court in
Oudekraal
went on further to say:
‘
[35]
It will generally avail a person to mount a collateral challenge to
the validity of an administrative act where he is threatened
by a
public authority with coercive action precisely because the legal
force of the coercive action will most often depend upon
the legal
validity of the administrative act in question.
A
collateral challenge to the validity of the administrative act will
be available, in other words, only “if the right remedy
is
sought by the right person in the right proceedings”.
Whether
or not it is the right remedy in any particular proceedings will be
determined by the proper construction of the relevant
statutory
instrument in the context of principles of the rule of law.’
(Own emphasis)
[51]
It is common cause that the respondent has
to date not sought to have the ‘unlawful’ amendment set
aside on review.
The amended plans which were approved by the
appellant exist as a matter of fact. The respondent did nothing to
challenge the lawfulness
of such plans by first following the
internal remedies and thereafter challenging the matter on review.
Instead he complied with
‘the instructions’ of the
appellant, which in my view showed that he was in agreement with the
amendment of the plans.
[52]
In
conclusion, if one follows the Plascon- Evans rule
[20]
,
the respondent’s version supports that of the appellant insofar
as the existence of the amended plans is concerned and therefore
the
court is capable of granting the order sought by the appellant.
[53]
In light of
the reasons set out above, the magistrate erred by making a finding
solely based on the PRG1 plan attached to the respondent’s
answering affidavit and not taking into account the common cause
facts alleged in the papers, in the process. For that reason his
judgment ought to be set aside.
[54]
Reverting
back to the condonation application. Despite the delay of over seven
months to prosecute the appeal and the tardiness
of the appellant’s
attorney in prosecuting the appeal, the merits of the case and its
importance to the public weigh in favour
of the granting of
condonation. It is in the public interest that decisions of organs of
state are observed and respected by members
of the community. It
would be amiss of this Court to overlook the actions of the
respondent in this case, which were
mala
fide
.
In
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[21]
the
following was said:
‘
The
proper functioning of a modern State would be considerably
compromised if all administrative acts could be given effect to or
ignored depending upon the view the subject takes of the act in
question.
No doubt it is for this reason that our law has always recognised
that even an unlawful administrative act is capable of producing
legally valid consequences for so long as the unlawful act is not set
aside.’
(Own
emphasis)
[55]
Having regard
to the cumulative effect of the
degree
of non-compliance in the noting and prosecution of the appeal, the
explanation therefor, the importance of the case, a respondent’s
interest in the finality of the judgment of the matter and the
prospects of success, which the court usually weighs in considering
an application for condonation, the appellant’s application for
condonation should succeed.
[56]
I would
therefore propose an order in the following terms:
1.
Condonation
application is granted;
2.
The appeal is
upheld and the magistrate’s judgment is set aside and the
following order is made:
2.1
The respondent
is ordered to remove the garage doors installed on the laundry/garden
store of his property and repair those in line
with the amended
building plans approved by the applicant and the respondent is
ordered to pay the costs of the application.
3.
The respondent
is ordered to pay the appellant’s costs of the appeal.
N
P BOQWANA
Judge
of the High Court
I
agree, and it is so ordered
E
BAARTMAN
Judge
of the High Court
APPEARANCES
FOR
THE
APPELLANT: Advocate A Schmidt
Instructed
by: Shcrӧter & Associates, George C/O Harmse Kriel, Cape
Town
FOR
THE FIRST RESPONDENT: Advocate J Whitehead SC
Instructed
by: Cilliers Odendaal Attorneys C/O Vanderspuy, Cape Town
[1]
Rules Regulating the Conduct of the Proceedings of the Magistrates’
Court of South Africa, Published under GN R740 in GG
33487 of 23
August 2010 [with effect from 15 October 2010]
[2]
1980 (4) SA 42
(0) at 49B
[3]
Orange
Free State Division of the High Court, Appeal No A187/2013,
delivered on 27 February 2014) at paragraph [24] thereof.
[4]
No.10
of 2013.
[5]
No.
32 of 1944
[6]
(Adopted
by resolution of the Regional Court Presidents' Forum on 28 May 2013
Effective from 1 August 2013)
[7]
1954
(3) SA 188
(A) at page 222D-E.
[8]
1978(1) SA 571 (N)
[9]
S v M supra at 572 A
[10]
See
S v M supra at 572 C - E
[11]
Rules Regulating the Conduct of the Proceedings of the Several
Provincial and Local Divisions of the Supreme Court of South Africa
as promulgated in Government Notice R48 of 12 January 1965 and as
amended by various Government Notices. Supreme Court must be
construed as reference to the High Court – see section 16(5)
(b) to (c) of Schedule 6 of the Constitution of the Republic
of
South Africa.
[12]
In Van Wyk v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at paragraph 22,
the court said: ‘An applicant for condonation must give a full
explanation for the delay. In addition,
the explanation must cover
the entire period of delay. And what is more, the explanation given
must be reasonable.’
[13]
In this regard see Ferreira v Ntshingila1990 (4) SA 271 (AD) at
281(E)and Saloojee and Another NNO v Minister of Community
Development
1965 (2) SA 135
(A) at 141.
[14]
1985 (4) SA 773
(A) at 787 G-H
[15]
Salojee
and Another, NNO v Minister of Community Development at page 141
[16]
1912
AD 181
at page 193
[17]
See Ferreira v Ntshingila
1990 (4) SA 271
(AD) at 281J to 282A
[18]
[2004]
3 All SA 1 (SCA)
[19]
See
Oudekraal Estates (Pty) Ltd at para 26. See also Laurence Baxter in
Administrative Law at page 355-356 where the principle
is stated as
follows:‘[27] 'There exists an evidential presumption of
validity expressed by the
maxim
omnia praesumuntur rite esseacta
;
and until the act in question is found to be unlawful by a court,
there is no certainty that it is. Hence it is sometimes argued
that
unlawful administrative acts are ''voidable'' because they have to
be annulled.’
[20]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623(A)
at
634G – 635C.
[21]
Oudekraal
Estates (Pty) Ltd v City of Cape Town supra at paragraph 26