Nabuvax (Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and Others (31875/13) [2013] ZAGPPHC 181; [2013] 3 All SA 528 (GNP) (2 July 2013)

REPORTABLE

IN THE NORTH GAUTENG HIGH COURT.

PRETORIA REPUBLIC OF SOUTH AFRICA )

CASE NO: 31875/13

DATE:02/07/2013

IN THE MATTER BETWEEN:

NABUVAX (PTY) LTD....................................................................1ST APPLICANT

PROC CORP 160 (PTY) LTD........................................................2nd APPLICANT

JOHANNES JACOBUS CORNELIUS NAUDE..........................3rd APPLICANT

AND

CITY OF TSHWANE METROPOLITAN MUNICIPALITY..............1ST RESPONDENT

BILLION PROPERTY DEVELOPMENTS (PTY) LTD.................2nd RESPONDENT

GAUTENG DEPARTMENT OF TRANSPORT.............................3rd RESPONDENT

& PUBLIC WORKS

SOUTH AFRICAN NATIONAL ROAD AGENCY..........................4th RESPONDENT

NEDBANK LIMITED.......................................................................5th RESPONDENT

GROUP FIVE LIMITED...................................................................6th RESPONDENT

JUDGMENT

KOLLAPEN J

Introduction

[1] This is an application brought on the basis of urgency and in terms of which the applicants, in Part A thereof and pending finalization

of Part B of the application, seek an order that interdicts the second respondent from performing any construction activities on

Monavoni Extension 58 (the subject property), alternatively interdicting the second respondent from performing any construction

activities on the subject property until such time as the first respondent has approved building plans in respect thereof in terms of the National Building Regulations and Building Standards Act 103 of 1997 (the ‘NBRBSA’).

[2] In Part B of the application the applicants seek an order reviewing and setting aside the decision taken by the first respondent on the 7th of December 2012 approving the second respondent’s application in terms of Section 98 of the Town Planning and Townships Ordinance 15 of 1986 (‘the Ordinance’) for the establishment of Monavoni Extension 58 township.

The first, second and fifth respondents oppose the relief sought.

The facts

The facts underpinning the dispute are not substantially in issue and may be summarized as follows:

[3] During June 2008 the second respondent applied for the establishment of a township on the subject property in terms of the Development

Facilitation Act No 67 of 1995 (the ‘DFA’). The advertisements in respect of the application were effected on the 4th

of June and on the 28th of June 2008. The second applicant intimated its objection to the proposed application on the 24th of June 2008.

[4] During July 2008, the second respondent withdrew its application and on the 21st of July 2008 it submitted a second application in terms of the DFA in substantially the same terms as the first application. This application was advertised on the 17th of September 2008 and on the 24th of September 2008.

[5] Objections were received from various parties including Zotec Developments (Pty) Ltd (‘Zotec’) the registered owner of Heuweloord Ext 19, Homegold Development (Pty) Ltd (‘Homegold’) the registered owner of Heuweloord Ext 18 and Atterbury Property Development (Pty) Ltd (‘Atterbury’). Following various pre-hearing meetings held in terms of the DFA, public hearings were scheduled and conducted by the Gauteng Development Tribunal (the ‘GDT’) over a period of approximately ten days between January 2009 and June 2009. Those participating and represented at the hearings included Zotec, Homegold and Atterbury (as objectors) as well as the first respondent as the relevant local authority and the second respondent as the applicant before the tribunal.

[6] On the 10th of September 2009 the GDT approved the application of the second respondent and in doing so approved the establishment of Monavoni Ext 39 on certain conditions. Zotec, Homegold and Atterbury filed an appeal against the decision of the GDT which came before the Gauteng Development Appeals Tribunal (‘GDAT’) and on the 21st of April 2010, the GDAT dismissed the appeal, upheld the decision of the GDT and imposed additional conditions.

[7] On the 18th of June 2010, the Constitutional Court ruled that Chapters V and VI of the DFA (in terms of which the second respondent’s application was brought)

was unconstitutional but suspended the order of invalidity until the 17th June of 2012.

[8] On the 18th of November 2011 the GDAT approved the subdivision of Monavoni Extension 39 into Extensions 58 and 59 and on the 23rd of November 2011, the GDAT approved an application by the second respondent to phase the development of Monavoni into two phases - Extension 58 and Extension 59 respectively.

[9] On the 10th of April 2012 the GDAT approved conditions of establishment in respect of the township Monavoni Ext 58.

[10] During May 2012 Homegold sold Heuweloord Ext 18 to the first applicant and in July 2012 Zotec sold Heuweloord Ext 19 to the first applicant

[11] On the 7th of August 2012, the first respondent published what it titled ‘Guidelines: Implementation of Decisions taken on Development Facilitation Act Application’ which was described by the first respondent as ‘a process to assist with effect from 7th August 2012 with the implementation of decisions taken by the Gauteng Development Tribunal in terms of the Development Facilitation Act.’