Dayken Properties CC and Another v Dania Investments (Pty) Limited and Others (AR260/2016) [2018] ZAKZDHC 41 (24 August 2018)

Dayken Properties CC and Another v Dania Investments (Pty) Limited and Others (AR260/2016) [2018] ZAKZDHC 41 (24 August 2018)

The court found that the applicant failed to establish that the developer was in default of its obligations to progressively develop the excluded properties as a nature reserve. The conditions of establishment did not specify a time period for cessation of agriculture, and the tribunal's silence on timing indicated no such intention. The requirement for consultation and satisfaction of the Department and Ezemvelo meant that their concurrence was necessary, and there was no evidence that they were dissatisfied or that the developer had failed to consult them. The applicant had no enforceable right to relief absent such dissatisfaction. Regarding the counter-application, the court held that...

Citation
[2018] ZAKZDHC 41
Parties
Appellant: Dayken Properties CC; Appellant: The Body Corporate of The Bend; Respondent: Dania Investments (Pty) Limited; Respondent: KwaZulu-Natal Department of Co-Operative Governance & Traditional Affairs; Respondent: Development Tribunal: KwaZulu-Natal; Respondent: KwaZulu-Natal Department of Agriculture and Environmental Affairs; Respondent: Ezemvelo KZN Wildlife; Respondent: KZN Crane Foundation; Respondent: uMngeni Municipality; Respondent: Mpofana Municipality; Respondent: Bradley John Price
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
24 August 2018
Case Number
AR260/2016
Procedural Posture
Civil Appeal / Appeal From Motion Proceedings; Appeal Against Refusal of Application and Grant of Counter Application
Outcome
Appeal against refusal of application dismissed; appeal against grant of counter-application upheld.
Judges
Olsen, Jappie, D Pillay
Legal Topics
Sectional Title Scheme, Nature Reserve Establishment, Mandatory Interdict, Counter Application Procedure, Conditions of Establishment, Body Corporate Obligations
Land and Property Civil Procedure Environmental Law Sectional Title Scheme Nature Reserve Establishment Mandatory Interdict Counter Application Procedure Conditions of Establishment +1 more

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Parties

Dayken Properties CC

Appellant

The Body Corporate of The Bend

Appellant

Dania Investments (Pty) Limited

Respondent

KwaZulu-Natal Department of Co-Operative Governance & Traditional Affairs

Respondent

Development Tribunal: KwaZulu-Natal

Respondent

KwaZulu-Natal Department of Agriculture and Environmental Affairs

Respondent

Ezemvelo KZN Wildlife

Respondent

KZN Crane Foundation

Respondent

uMngeni Municipality

Respondent

Mpofana Municipality

Respondent

Bradley John Price

Respondent

Procedural Posture

Civil Appeal / Appeal From Motion Proceedings; Appeal Against Refusal of Application and Grant of Counter Application

Legal Issues

  1. 1 Whether the developer (first respondent) failed in its duty to progressively establish a nature reserve on the excluded properties as required by the conditions of establishment.
  2. 2 Whether the applicant was entitled to a mandatory interdict compelling the developer to cease agricultural activities and develop the excluded properties as a nature reserve.
  3. 3 Whether the body corporate of the sectional title scheme is responsible for maintenance and levies relating to the excluded properties prior to their conversion to a nature reserve.

Ratio Decidendi

The court found that the applicant failed to establish that the developer was in default of its obligations to progressively develop the excluded properties as a nature reserve. The conditions of establishment did not specify a time period for cessation of agriculture, and the tribunal's silence on timing indicated no such intention. The requirement for consultation and satisfaction of the Department and Ezemvelo meant that their concurrence was necessary, and there was no evidence that they were dissatisfied or that the developer had failed to consult them. The applicant had no enforceable right to relief absent such dissatisfaction. Regarding the counter-application, the court held that...

Court Disposition

Appeal against refusal of application dismissed; appeal against grant of counter-application upheld.

Orders

  • The appeal against the refusal of the application is dismissed.
  • The first and second appellants are directed to pay the costs of the appeal.