Stoney River Prop 199 CC v Automotive Parts Exports (PTY) LTD and Others (1235/2018) [2022] ZALMPTHC 7 (17 May 2022)

INTHE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO: 1235/2018

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

In the matter between:

STONEY RIVER PROP 199 CC

(Registration number: 2006/082032/23)

APPLICANT

And

AUTOMOTIVE PARTS EXPORTS (PTY) LTD

T/A BP AUTO BRIDGE

(Registration number: 1991/004644/07)

FIRST RESPONDENT

CAPRICORN N1 EAST FILLING STATION CC

T/A TOTAL CAPRICORN PLAZA

(REGISTRATION NUMBER:

2010/155113/23)

SECOND RESPONDENT

AYOBA 1 STOP (PTY) LTD T/AN AYOB

MOTORS CALTEX

(Registration Number: 2016/098675/07)

THIRD RESPONDENT

BANDELIERKOP SENTRUM (PTY) LTD T/A

VIVA BENDELIERKOP

(Registration number: 2013/026656/07)

FOURTH RESPONDENT

CLASS TRADING 514(PTY) LTD T/A

TOTAL MAKHADO

(Registration number: 2022/0124609/07)

FIFTH RESPONDENT

IN RE

(Registration number: 1991/004644/07)

FIRST APPLICANT

2010/155113/23)

SECOND APPLICANT

(Registration Number: 2016/098675/07)

THIRD APPLICANT

(Registration number: 2013/026656/07)

FOURTH APPLICANT

(Registration number: 2022/0124609/07)

FIFTH APPLICANT

CHAIRPERSON: MUNICIPAL APPEALS

TRIBUNAL: MAKHADO LOCAL

MUNICIPALITY

FIRST RESPONDENT

CHAIRPERSON OF THE MUNICIPAL

PLANNING TRIBUNAL:

MAKHADO LOCAL MUNICIPALITY.

SECOND RESPONDENT

MAKHADO LOCAL MUNICIPALITY

THIRD RESPONDENT

(Registration number: 2006/082032/23)

FOURTH RESPONDENT

JUDGEMENT-LEAVE TO APPEAL

AML PHATUDI J

Introduction

[1] I set aside decisions made by both the Municipal Planning Tribunal- Makhado Local Municipality (MPT) and Municipal Appeals Tribunal-

Makhado Local Municipality (MAT) approving an application by the applicant (fourth respondent in the main) for the establishment of a Township- “Makhado Fuel City” (MFC). The applicant is dissatisfied about the order handed down on 25 March 2022. This leave to appeal lies against the said judgment. The respondents (applicants in the main) opposes the application. For ease of reference and as agreed between parties, reference will be as in convention.

[2] It is trite law that applications for leave to appeal are regulated by the provisions of section 17(1) (a) (i) and (ii) of the Superior Courts Act 10 of 2013. For ease of reference, the section provides:

17. (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that—

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including

(iii) conflicting judgments on the matter under consideration;

[3] The fourth respondent sets out in its application for leave to appeal, a number of grounds upon which they seek leave to appeal. The grounds raised by the fourth respondent are in essence an attack on the reasoning in coming to the orders I handed down. The law is settled. An applicant can only note an appeal against the order and not against the reasons for the judgment[1].

[4] The Act stipulates that leave to appeal may only be given where a judge is of the opinion that the appeal would have the prospects of success. The test is whether there are prospects of success on appeal or not.

[5] The fourth respondent’s grounds are more on my findings and not orders. The respondent’s submission is that the court’s findings are wrong and thus wrong orders.

[6] I am reluctant to rehearse the reasons I found in coming to the orders I made. I expressed my views regarding undue delay. Having

heard submissions from counsel for the parties, I agree, as counsel for the applicants submits, that there are no prospects of success on appeal. This ground falls to fail.

[7] The fourth respondent launched its application in terms of s 96 read with s 69 of the Town Planning and Townships Ordinance 15 of 1986. This is further read with Schedule 11 Regulation 21 under Ordinance 15 of 1986, which provides the format a Notice for application for establishment of a township should comply.

[8] The Notice of application is required to, among others; provide the description of land on which the township is to be established. I found in my judgment that the description of the property is the kernel pillar in Township Establishment applications. It is still my view that the discrepancies in the fourth respondent’s notice of application, the advertisements and the Title Deed before the tribunals falls short of the description requirement.

[9] Having heard the submissions from counsel for the parties, I am of the view that there are no prospects of success on appeal and on this leg too, the application for leave to appeal falls to fail.

[10] Costs follow the event. The respondents (applicants in the main) are entitled to costs occasioned by this application.

[11] I, in the result, make the following order

Order

The applicant’s (Fourth respondent) application for leave to appeal is dismissed with costs including costs of employment of two counsel.

_____________________________

AML PHATUDI

JUDGE OF THE HIGH COURT

APPEARANCES

FOR THE RESPONDENTS

(APPLICANTS IN THE MAIN) : Adv. L. Kotze

INSTRUCTED BY

: Jacques Classen Inc Attorneys

FOR THE APPLICANT

(FOURTH RESPONDENT

IN THE MAIN)

: Adv. C. Erusmus SC

INSTRUCTED BY

: Adriaan Venter Attorneys & Ass

HEARING DATE

: Virtually- 06 May 2022

JUDGEMENT DATE

: Judgment handed down electronically by circulation to the parties’ legal representatives by email and publication through SAFLII. The date deemed handed down is 17 May 2022.

[1] The South African Reserve Bank v M G Khumalo (235/09) [2010] ZASCA 53 (31 March 2010) Leach JA at para [4] says: “An appeal lies against an order that is made by a court and not against its reasons for making the order. It follows that on appeal a respondent is entitled to support the order on any relevant ground and is not confined to supporting it only for the reasons given by the court below.” (Foot note omitted)