Sinbu Industrial Properties (Pty) Ltd v City of Tshwane Metropolitan Municipality and Others (2019/76101) [2021] ZAGPPHC 658 (8 September 2021)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) NOT REVISED

8/9/2021

2019/76101

In the matter between:

SINBU INDUSTRIAL PROPERTIES (PTY) LTD

Applicant

and

CITY OF TSHWANE METROPOLITAN MUNICIPALITY

1st Respondent

REGISTRAR OF DEEDS: PRETORIA 2nd Respondent

WOODY WOODPECKERS WOOD AND LEISURE SALES CC

3rd Respondent

TOWNDEV (PTY) LTD

4th Respondent

JUDGMENT

MOKOSE J

Introduction

[1] The applicant seeks an order to amend a public servitude, being a right of way, which is located on two properties owned by it, Portion 344 and Portion 345 of the Farm Grootfontein 394 held by Deeds of Transfer No. T83171/2018 and T83170/2018. The applicant is in the process of developing the properties which development will consist of a filling station, fast-food drive-through and a rural retail centre. The development will be operated across common boundaries of the two properties.

[2] The first respondent opposes the application for the reason that it believes that the applicant ought to have approached the local authority with a proposal for the closure or alteration of a street as envisaged in Section 67(1) of the Local Government Ordinance 17 of 1937.

[3] The sequence of events in this matter is immaterial to the issue on hand and as such, I will not set them out.

[4] It is apparent from the site development plan that the properties concerned, being Portions 344 and 345 are situated on the KSO better known as Garsfontein Road. This road runs from west to east. It is also apparent that the proposed site development that Portion 344 is bordered to the west of Sinovich Drive. Two other properties being Portions 131 and 132 are located on the other side of Sinovich Drive. The owners of those properties are the third and fourth respondents.

The second respondent has no objection to the granting of the order. The third respondent has not opposed this application and the fourth respondent has consented to the amendment of the servitude.

[5] The applicant ascertained, prior to the commencement of the proposed development, that a road reserve and building restriction line were applicable in respect of Garsfontein Road. The road reserve and building restriction line extended 95 metres onto Portions 344 and 345. The applicant avers that it had the effect of reducing the developable extent of both Portions 344 and 345 in that it made an impact in the size of the area available for development in that there was a need to meet a certain minimum threshold in order for the development to be feasible. This therefore did not meet the aforesaid

threshold. It is for this reason that the applicant approached the Gauteng Department of Roads and Transport for a relaxation of the building restriction line which was approved.

[6] The road reserve and building restriction line are impacted by a public servitude described in the Deeds of Transfer as a servitude of right of way in favour of the general public as it appears from Notarial Deed of Servitude No K11 20/1997S. This servitude affects the developable area of both Portions 344 and 345. The applicant contends that the developable area is reduced to such an extent as to make the proposed development not feasible. It is for that reason that it approaches this Court to obtain an order to amend the existing servitude in accordance with the diagrams annexed to the

Notice of Motion .

[7] The applicant contends that when the servitude was originally registered the intersection was not tarred nor was there a traffic light at the said intersection. The historic circumstances have changed substantially making the exigencies of access different to what they were previously. The road is now tarred and the intersection regulated by a traffic light. As such, there is no need for longer splays which characterize the servitude which was long and extended. The proposal is to make the splays much shorter which will still achieve the purpose of the servitude which is to gain access to Sinovich Drive and the K50. Not only would the proposed servitude not affect the original purpose but it would also enable the applicant to continue with its development of Portions 344 and 345 which would benefit the general public by contributing to growing the economy, create a significant number of jobs and grant the local community access to a retail centre and filling station.

[8] The first respondent opposes this application and contends that the applicant in seeking to amend a public servitude and ought to have adhered to the Local Government Ordinance 17 of 1939 ("the Local Government Ordinance"). The first respondent avers that the applicant has failed to disclose to this Court that the power to control and manage public areas is vested in the Council of the first respondent in terms of Section 63 of the Local Government Ordinance.

The applicant's failure to approach the local authority renders the application to be fatally defective.

[9] For the local authority to oppose the proposed amendment, it must demonstrate first of all that the Ordinance is applicable. This would entail the local authority showing that the servitude is situated within its jurisdiction and that the amendment that the applicant seeks to effect constitutes a closure and/or diversion of a street.

[10] Section 63 of the Local Government Ordinance reads as follows:

"Public Places vested in Council - (1) The Council shall have control and management of all-

(a) roads, streets, thoroughfares , bridges, subways including foot pavements , footpaths, sidewalks and lanes...

(b) ……

(c) ……

(d) ……

which have been or shall be at the time set apart and appropriated by proper authority for the use and benefit of the public, or to which the inhabitants of the municipality shall at any time have as is otherwise provided in this or acquire a common right, and the same shall be vested in council to keep the same open (save as is otherwise provided in this Ordinance or any bylaw)."

[11] A street is defined in the ordinance to include any street, road and thoroughfare shown on a general plan of township or agricultural holding or other division of land or in respect of which the public have acquired perspective or a right of way.

[12] From the site development plan the portion of the servitude which the applicant seeks to reduce is situated within the building restriction area adjoining Garsfontein Provincial Road also known as Road 321 or the future KS0. The applicant is of the view that it therefore falls under the control of the Gauteng Department of Roads and Transport ("Gautrans").

[13] Section 3 of the Gauteng Transport Infrastructure Act 8 of 2001("the Gautrans Act") requires the Member of the Executive Council ("MEC") of the Province to compile a list of provincial roads. It also requires that the MEC allocate a number of each road listed as such. Furthermore, only provincial roads listed in terms of this act shall be under the supervision of the MEC.

[14] 'Building restriction area' is described in the definitions of the Gautrans Act as follows:

"'building restriction area' means, subject of section 12, the area consisting of land (but excluding land in an urban area):

(a) Situated alongside a provincial road or railway line within a distance of 95 metres from the centre line of the road or rail reserve in question;

(b) Situated within a distance of 500 metres from a point of intersection of a provincial road and any other road, or of a provincial road and a railway line."

[15] The first respondent acknowledges in its heads of argument that there is a separation of planning between the different spheres of government. However, it is noted that nowhere in the first respondent's papers is it alleged that the Ordinance is applicable. The local authority assumes that the roads in question are all municipal roads and therefore subject to the Ordinance. There are a number of categories of roads which do not fall within the control of the local authority such as provincial roads and national roads. In the absence of this allegation, the first respondent's opposition to the application falls to be dismissed.

[16] The first respondent further contends that the proposed amendment to the servitude will amount to a permanent closure of parts of a street as envisaged in Section 67 of the Ordinance on the basis of contentions made in the applicant's application, inter alia, that the diagrams clearly indicate the extent to which the servitude has been reduced. This, the first respondent contends results in a proposed closure as envisaged in Section 67 of the Ordinance. As such, the applicant ought to have complied with its requirements.

[17] Section 67 reads as follows:

"67 Permanent closing or diversion of street - Notwithstanding anything to the contrary in this ordinance contained, the council may permanently close or divert any street or portion of a street if and when the following conditions have been complied with:-

(1) A proposal that steps be taken for the closing of a street or portion of a street shall be dealt with at a meeting of council.

(2) If the said proposal be agreed to, the council shall cause a plan to be prepared showing the position of the boundaries of the street portion of the street proposed to be closed or diverted.

(3) (a) On completion of the said plan the council shall publish a notice in the Provincial Gazette and in at least one English and one Afrikaans newspaper circulating in the council's area a/jurisdiction setting out briefly the council's proposal, stating that the said plan is open for inspection at a place and during the hours specified in such notice and calling upon any person who has any objection to the proposed closing or diversion or who will have any claim for compensation if such closing or diversion is carried out to lodge his objection and claim, as the case may be, with the council, in writing, not later than a specified dote which shall be at least thirty days from the date of publication of the Provincial Gazette or newspaper in which the notice will be published last.

(b)...........

[18] Section 67 of the Ordinance is applicable in circumstances where a street is sought to be closed or diverted. The applicant contends that the servitude is characterised by elongated splays immediately adjacent to the K50. The splays are intended to allow for traffic to turn into and out of the K50. The proposed amendment is to reduce the length of the splays to a limited degree.

[19] It is apparent from the application that it does not fall within the prescripts of Section 67 as the amendment of the servitude is not a street closure nor a diversion. The amendment does not seek to remove the splays in their entirety, it seeks to amend the length of them. The amendment could never be said to constitute a closure or a diversion of a street especially In light of the interpretation of the words 'closure' and 'diversion' our courts have given.[1] I am satisfied that the purpose of the amended servitude will remain substantially the same after it has been effected.

[20] The first respondent is also of the view that the procedure adopted by the applicant to approach this Court by way of a Rule Nisi would also defeat the purpose of municipal planning. In particular, it is of the view that the approach by Rule Nisi is more lenient than its own planning standards and procedures and there is also a concern that this approach would result in orders that undermine its planning and development standards.

[21] The applicant denies that the Court application entails a narrow approach to the notion of public participation and that the relief sought has been framed in such a way as to include the participation of all interested parties in that they will have an opportunity to raise any objection s they may have.

[22] Whilst the court will guard against developers adopting 'forum shopping' between the courts and the municipal development committee, it is evident that the approach by the Rule Nisi will not limit the ability of an interested person from voicing his objection where he feels that he is aggrieved by the proposed application.

[23] I am satisfied that the applicant has made out a case for the relief sought. Accordingly, the following order is granted:

(i) the public servitude of right of way in favour of the general public as appears more fully from Notarial Deed of Servitude No. K1120/19975

with Diagram SG No. 10571/1995 annexed thereto and indicated on the General Plan SG No. 10572/1995, be and is hereby amended in

accordance with the servitude diagram SG 860/2019 and servitude diagram SG861/2019;

(ii) A rule nisi is hereby issued calling upon any person who may have an interest to appear and show cause, if any, to this court on a date to be arranged with the Registrar at 10H00, why the order in prayer (i) should not be made final;

(iii) A copy of this order is to be:

(a) published in the Government Gazette, the Citizen and the Pretoria News;

(b) affixed to the applicant's properties in respect of which the servitude is registered .

(iv) Costs of suit.

Judge of the High Court of South Africa

Gauteng Division, Pretoria

For the Applicant:

Adv NG Louw

Instructed by

Prinsloo Bekker Attorneys

Pretoria

For the First Respondent:

Adv M Rasekgala

Instructed by Malebye & Maleho Attorneys

Date of hearing: 25 August 2021

Date of Judgment: 8 September 2021

[1] Tembu Convenience Centre CC and another v City of Johannesburg & Others 2019 (4) SA 194 (SCA)