Body Corporate of Argyle Green v Appeal Authority City of Johannesburg and Others (Application for Leave to Appeal) (2021/9113) [2024] ZAGPJHC 1095 (28 October 2024)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case Number: 2021-9113

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED: YES/NO

28 October 2024

In the matter between:

THE BODY CORPORATE OF ARGYLE GREEN SS890/1994 Applicant And APPEAL AUTHORITY, CITY OF JOHANNESBURG First respondent NIENABER THE CHAIRPERSON, MUNICIPAL PLANNING TRIBUNAL Second respondent CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY Third respondent PILOFIN (PTY) LTD Fourth respondent

ORDER: APPLICATION FOR LEAVE TO APPEAL

1. The application for leave to appeal is dismissed.

2. The third respondent in the main application is ordered to pay the costs of the applicant, with counsel’s fees to be taxed at Scale C in terms of Rule 67A of the Uniform Rules of Court.

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

[1] For the sake of convenience, I refer to the parties as in the main application, and the judgment and order I handed down on 16 September 2024.

[2] The City respondents[1] seek leave to appeal the order under two rubrics: firstly, the order striking substantial portions of their answering and supplementary answering affidavits based on these containing inadmissible hearsay or opinion evidence; and secondly, that the revised comments of the Johannesburg Road Agency (“the JRA”) remain valid and binding until set aside.

The hearsay issue

[3] Whilst section 3 of the Law of Evidence Amendment Act[2] transformed the common law approach to hearsay evidence, the default position remains that, “hearsay, unless it is brought within one of the recognised exceptions, is not evidence, i.e. legal evidence, at all.”[3] Accordingly, unless the presenter of hearsay seeks leave to enter such hearsay into “legal evidence”,[4] it remains inadmissible and thus irrelevant. Being irrelevant, the Body Corporate availed itself of the provisions of Rule 6(15),

seeking the striking out of offending portions of the answering and supplementary answering affidavits of the City respondents.

[4] The provisions of Rule 6(15) do not constitute a close list of instances where a court may be called upon to strike matter from an affidavit.[5] It is entirely conceivable to seek the striking out of inadmissible evidence, argument, and new matter in a replying affidavit. As the Body Corporate’s application rested on the inadmissibility of portions of the answering and supplementary answering affidavits on the basis of hearsay, and opinion evidence, it was not required to demonstrate prejudice.[6]

[5] The City respondents submit that, as the deponent to the affidavits filed on behalf of the Body Corporate, Ms Gibbs, does not state the source of her alleged personal knowledge, I erred in criticising the deponent to the affidavits filed on behalf of the City respondents, for his lack of personal knowledge.

[6] This submission ignores the confirmatory affidavits of Mr Druce and Dr Sampson, annexed to Ms Gibbs’ affidavits. Both Mr Druce and Dr Sampson were part of and present at the hearing before the MPT, with Mr Druce being the author and presenter of the Body Corporate’s opposition to the rezoning application, and the appeal to the Appeal Authority. Additionally, Mr Druce expressly qualified himself as an expert in town planning. Both Mr Druce’s and Dr Sampson’s confirmatory affidavits do more than just “confirm the contents of Ms Gibbs’s affidavit in so far as it relates to me”. Each of the confirmatory affidavits contain crucial evidence of which they each have personal knowledge. Consequently, although Ms Gibbs’s affidavits contain allegations which are hearsay, these are admissible on the basis of section 3(1)(b) of the Amendment Act.

[7] The same cannot be said of allegations contained in Mr Malahlela’s affidavits, neither of which was supported by any confirmatory affidavits. The “explanatory affidavit” of Ms Motaung, who was a constituent member of the MPT, contained nothing to confirm the hearsay or opinion evidence of Mr Malahlela. In fact, Ms Motaung’s affidavit references only paragraphs 25 to 30 of the supplementary founding affidavit and makes no mention of either the answering affidavit or the supplementary answering affidavit to which it was annexed.

[8] In contrast to the “sloppy method of adducing evidence by way of a hearsay allegation … supported by a so-called ‘confirmatory affidavit’” which confronted the court in Drift Supersand (Pty) Ltd v Mogale City Local Municipality[7], the City respondents herein did not present any admissible evidence on the contentious issues. In neither the answering affidavit nor the supplementary answering affidavit does Mr Malahela even attempt to justify the inclusion of the hearsay evidence or to invoke the Court’s discretion to allow the hearsay evidence. It was only in when faced with the application in terms of Rule 6(15), and in argument, that the City respondents, relying on Lagoon Beach Hotel,[8] raised aspects such as it being impractical to obtain confirmatory affidavits of each and every person who authored a document. This argument is not only unsupported by the contents of the answering or supplementary answering affidavit, but it overlooks the contentious issues for determination raised on the affidavits.

[9] The City respondents were not called upon to prove, by way of confirmatory affidavits, each and every document or report filed with the MPT or the Appeal Authority. On my estimation, only four documents were crucial to the issues for determination: the call for and the contents of the JRA’s revised comments (both of which were attached to Pilofin’s affidavit), Pilofin’s

submissions to the appeal authority (which was attached to Pilofin’s affidavit), and the report of the Group Legal & Contracts & Development Planning, allegedly annexed to the letter of 31 August 2020, advising of the appeal decision (attached to the City respondent’s answering affidavit.

[10] The City respondents presented no admissible evidence to gainsay the Body Corporate’s case that it never had sight of these four documents. Why the City respondents were unable to do so, Mr Malahlela does not explain in any of his affidavits. To add insult to injury, the City respondents even sought to rely on documents annexed to the affidavits filed on behalf of Pilofin, and which documents did not form part of the review record. No explanation was proffered why these documents were not included in the review record.

[11] Ultimately, there is no factual or legal basis to argue that the City respondents were obliged to obtain confirmatory affidavits of a myriad of persons from each of the entities and third parties referred to in the heads of argument filed on behalf of the City respondents.

[12] I am not prepared to accede to the entreaties of Mr Mokutu SC, who appeared with Mr Stemela for the City respondents, to grant leave to appeal so that the City may obtain clarity on how it is to present evidence in matters such as the present. Not only is the answer perforce fact-specific, but it is not for a civil court to advise a litigant, who is ably legally assisted, on the manner in which it is to present its evidence.

[13] On balance, I am not satisfied that an appeal against the orders striking out portions of the answering and supplementary answering affidavits would have a reasonable prospect of success.

The JRA’s comments issue

[14] It was contended on behalf of the City respondents that the JRA’s revised comments dated 12 October 2018 constitute administrative action in and of itself, which remain valid until set aside. As such, it was argued that the JRA ought to have been joined in the main application so that the reasons for the revised comments could have been made available to the court. Accordingly, I erred to granting the relief in the absence of the JRA.

[15] By virtue of the by-law[9], the determination of a rezoning application does not fall within the purvey of the JRA, but that of the MPT, who is entitled to call for reports, comments and the like from relevant entities and third parties. There is no dispute that the MPT did receive various reports and comments.

[16] As set out in paragraphs 56 and 57 of the main judgment, one of the most contentious issues relevant to the rezoning application was the issue of the ingress and egress of vehicles into and from the proposed development. In fact, pursuant to the hearing on 10 October 2018, the MPT regarded the issue of sufficient relevance, that it resolved to seek revised comments from the JRA. The revised comments came in the form of the JRA’s letter of 12 October 2018.

[17] Plainly, the contents of the JRA’s letter did not constitute a determination or a decision, but merely a recordal that the

“JRA has no objection that one common access point is proposed at the intersection of Grayston Drive and Helen Road, as proposed in the attached sketch plan by WSP Engineers, Drawing No, 327503-GL-01. The JRA has always maintained that this would be the desired option.”

[18] Had the JRA’s revised comments constituted a determination or a “decision”, as the City respondents would have it, surely the MPT would have been included as it in the November 2018 decision. The MPT did not. In truth, the record does not evidence that the JRA’s revised comments were even tabled at the November 2018 meeting, much less discussed by the members of the MPT prior to making the November 2018 decision. It is in this context, that the November 2018 lacks procedural rationality.

[19] Accordingly, I am not satisfied that the JRA’s comments constituted a “determination” which is susceptible to review and/or which ought to be set aside prior to the review of the November 2018 decision.

[20] In any event, as accurately pointed out by Mr Du Plessis, appearing for the Body Corporate, had the JRA’s revised comments in fact constituted a “determination”, by virtue of section 151 (1) of the Constitution, read with Part B of Schedule 5, such determination falls within the purvey of executive powers and functions of a municipal council, which is specifically excluded in (cc) of the definition of “administrative action” in section 1 of PAJA.

[21] In the result, I am satisfied that JRA issue would not have reasonable prospect of success on appeal.

[22] Accordingly, I make the following order as set out above.

SARITA LIEBENBERG

ACTING JUDGE OF THE HIGH COURT

Appearances:

For the applicant (in the main application):

Adv LM du Plessis

For the first, second and third respondents

(in the main application):

Adv E Mokutu SC and Adv X Stemela

For the fourth respondent (in the main application):

No Appearance

Heard on:

22 October 2024

Judgment:

28 October 2024

[1] Being the first, second and third respondents in the main application

[2] Act 45 of 1988 (“the Amendment Act”)

[3] Vulcan Rubber Works v South African Railways And Harbours 1958 (3) SA 285 (A) at 296F; S v Ndlovu Ndhlovu and Others 2002 (6) SA 305 (SCA) (2002 (2) SACR 325; [2002] 3 All SA 760; [2002] ZASCA 70) (Ndhlovu) para 14; LA Group (Pty) Ltd v Stable Brands (Pty) Ltd And Another 2022 (4) SA 448 (SCA) at 206,

[4] Pioneer Foods (Pty) Ltd t/a Essential Foods v Shear N.O. (JA21/22) [2024] ZALAC 46 (18 October 2024) at para 23

[5] E.g. Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368G; Tshabalala-Msimang v Makhanya [2007] ZAGPHC 161; [2008] 1 All SA 509 (W) at 516e; Breedenkamp v Standard Bank of South Africa Ltd 2009 (5) SA 304 (GSJ) at 321B; LF v TF 2020 (2) SA 546 (GJ) at para 25; Clairison’s CC v MEC for Local Government, Environmental Affairs and Development Planning 2012 (3) SA 128 (WCC)

[6] Cultura 2000 v Government of the Republic of Namibia 1993 (2) SA 12 (Nm) at 27H

[7] 2017 JDR 1611 (SCA): [2017] 4 All SA 624 (SCA) at para 31. Also see Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA) at para 3.

[8] Lagoon Beach Hotel v Lehane 2016 (3) SA 143 (SCA)

[9] City of Johannesburg Municipal By-law, 2016