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South Africa Judgment

North Gauteng High Court, Pretoria

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)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the applicants had established a prima facie right to seek an interim interdict, as construction activities were being undertaken without the requisite approval of building plans in terms of the National Building Regulations and Building Standards Act. The urgency was justified by the ongoing construction, which could result in irreversible changes to the property. The balance of convenience favoured the applicants, as the harm to them outweighed any prejudice to the respondents. The court held that pending the outcome of the review application, it was appropriate to restrain the second respondent from continuing construction activities until compliance with statutory requirements was confirmed.

Court disposition

Interim interdict granted pending review; construction activities restrained until approval of building plans.

Orders

  • The second respondent is interdicted from performing any construction activities on Monavoni Extension 58 pending finalization of Part B of the application.
  • Alternatively, the second respondent is interdicted 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.

02

Material facts

Parties

Nabuvax (Pty) Ltd

Applicant

Proc Corp 160 (Pty) Ltd

Applicant

Johannes Jacobus Cornelius Naude

Applicant

City of Tshwane Metropolitan Municipality

Respondent

Billion Property Developments (Pty) Ltd

Respondent

Gauteng Department of Transport & Public Works

Respondent

South African National Road Agency

Respondent

Nedbank Limited

Respondent

Group Five Limited

Respondent

03

Procedural history

  1. Posture

    Urgent Application / Application for Interim Interdict (part A) Pending Review (part B)

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants contend that the second respondent is unlawfully proceeding with construction on Monavoni Extension 58 without approved building plans as required by the National Building Regulations and Building Standards Act 103 of 1997. They argue that the approval process was flawed and that the first respondent's decision to approve the township establishment should be reviewed and set aside. Urgency is claimed due to ongoing construction activities that may cause irreversible harm.
Respondent
The first, second, and fifth respondents oppose the relief, arguing that all necessary approvals have been obtained and that the applicants lack standing or urgency. They maintain that the development was lawfully approved by the relevant authorities, including the Gauteng Development Tribunal and Appeals Tribunal, and that the applicants' objections have already been considered and dismissed in prior proceedings.

05

Court’s reasoning

  1. 01

    Setlogelo v Setlogelo 1914 AD 221

    An interim interdict may be granted if the applicant establishes a prima facie right, a well-grounded apprehension of irreparable harm, the absence of an adequate alternative remedy, and that the balance of convenience favours the granting of relief.

  2. 02

    National Building Regulations and Building Standards Act 103 of 1997

    Building activities may not commence without approved building plans as required by the National Building Regulations and Building Standards Act.

  3. 03

    Promotion of Administrative Justice Act 3 of 2000

    Decisions of administrative bodies are subject to review under the Promotion of Administrative Justice Act if they are unlawful, unreasonable, or procedurally unfair.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicants had established a prima facie right to seek an interim interdict, as construction activities were being undertaken without the requisite approval of building plans in terms of the National Building Regulations and Building Standards Act. The urgency was justified by the ongoing construction, which could result in irreversible changes to the property. The balance of convenience favoured the applicants, as the harm to them outweighed any prejudice to the respondents. The court held that pending the outcome of the review application, it was appropriate to restrain the second respondent from continuing construction activities until compliance with statutory requirements was confirmed.

Obiter and limits

  • The court noted the complexity of township establishment processes and the importance of compliance with statutory procedures to safeguard the interests of affected parties.
  • The judgment highlighted the need for clarity in the implementation of decisions taken under the Development Facilitation Act, especially following the Constitutional Court's ruling on its invalidity.

Court disposition

Interim interdict granted pending review; construction activities restrained until approval of building plans.

  • The second respondent is interdicted from performing any construction activities on Monavoni Extension 58 pending finalization of Part B of the application.
  • Alternatively, the second respondent is interdicted 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.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2013] ZAGPPHC 181

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.’

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Setlogelo v Setlogelo 1914 AD 221

Case cited

National Building Regulations and Building Standards Act 103 of 1997

Legislation

Legislation referenced in the available case record.

Development Facilitation Act 67 of 1995

Legislation

Legislation referenced in the available case record.

Town Planning and Townships Ordinance 15 of 1986

Legislation

Legislation referenced in the available case record.

Promotion of Administrative Justice Act 3 of 2000

Legislation

Legislation referenced in the available case record.

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