Co-Props 1079 (Pty) Ltd v Ekurhuleni Metropolitan Municipality (91277/2016) [2017] ZAGPPHC 595 (12 September 2017)

Co-Props 1079 (Pty) Ltd v Ekurhuleni Metropolitan Municipality (91277/2016) [2017] ZAGPPHC 595 (12 September 2017)

The court found that the respondent has a clear statutory duty to consider and decide on the applicant's building plans. The pending review application by Constann Investments (Pty) Ltd does not constitute a legal impediment to the respondent's duty, as Constann has not prosecuted its review and has no direct and substantial interest in the present proceedings. The test for non-joinder requires a party to have locus standi and a legal interest that may be prejudiced by the judgment. Constann failed this test, and thus the point of non-joinder was rejected. The respondent's refusal to act was unjustified, and the applicant was entitled to the relief sought. However, the court declined to...

Citation
[2017] ZAGPPHC 595
Parties
Applicant: CO-PROPS 1079 (PTY) LTD; Respondent: EKURHULENI METROPOLITAN MUNICIPALITY
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 September 2017
Case Number
91277/2016
Procedural Posture
Civil Application / First Instance
Outcome
Application granted. The respondent is compelled to consider and notify the applicant of its decision on the building plans within 21 days. Costs awarded to the applicant on a standard scale, including costs of senior counsel.
Judges
N Janse Van Nieuwenhuizen
Legal Topics
Compelling Administrative Action, Non Joinder, Building Plan Approval, Statutory Duty
Administrative Law Civil Procedure Compelling Administrative Action Non Joinder Building Plan Approval Statutory Duty

Case Brief

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Parties

CO-PROPS 1079 (PTY) LTD

Applicant

EKURHULENI METROPOLITAN MUNICIPALITY

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the respondent is legally obliged to consider and decide on the applicant's building plans within a reasonable time.
  2. 2 Whether the non-joinder of Constann Investments (Pty) Ltd precludes the granting of relief to the applicant.
  3. 3 Whether the respondent's refusal to act is justified by the pending review application brought by Constann.

Ratio Decidendi

The court found that the respondent has a clear statutory duty to consider and decide on the applicant's building plans. The pending review application by Constann Investments (Pty) Ltd does not constitute a legal impediment to the respondent's duty, as Constann has not prosecuted its review and has no direct and substantial interest in the present proceedings. The test for non-joinder requires a party to have locus standi and a legal interest that may be prejudiced by the judgment. Constann failed this test, and thus the point of non-joinder was rejected. The respondent's refusal to act was unjustified, and the applicant was entitled to the relief sought. However, the court declined to...

Court Disposition

Application granted. The respondent is compelled to consider and notify the applicant of its decision on the building plans within 21 days. Costs awarded to the applicant on a standard scale, including costs of senior counsel.

Orders

  • The respondent is compelled to, within 21 days from the date of this order, consider and notify the applicant of its decision pertaining to the building plans submitted on 11 August 2015 and 28 April 2016.
  • The respondent is ordered to pay the costs of the application, including the costs consequent upon the appointment of senior counsel.