Tridevco (Pty) Ltd and Others v Zenprop Property Holdings (Pty) Ltd and Others (8578/2016) [2018] ZAGPPHC 658 (3 September 2018)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG PROVINCIAL DIVISION, PRETORIA

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

Case No.: 8578/2016

3/9/2018

In the matter between:

Tridevco (Pty) Ltd

First Applicant

Balero Properties CC

Second Applicant

Glen Ballad Properties

Third Applicant

Johannes van Eck Viljoen

Fourth Applicant

Johannes Albertus Kuhn van Wyk

Fifth Applicant

K L Development (Pty) Ltd

Sixth Applicant

and

Zenprop Property Holdings (Pty) Ltd

First Respondent

Allan James Flynn Mundell N. O.

Second Respondent

Adam John Blow N. O.

Third Respondent

James Otto Tannenberger N. O.

Fourth Respondent

Johannes Jacobus Antonius Labuschagne N.O.

Fifth Respondent

Sharmaine Labuschagne N. O.

Sixth Respondent

Robert George Mendonca Velosa N. O.

Seventh Respondent

The Ekurhuleni Metropolitan Municipality

Eighth Respondent

The MEC: Department of Agriculture and Rural

Development, Gauteng Province

Ninth Respondent

JUDGMENT

Vally J

Introduction

[1] This case, which is mainly a review application brought in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), involves a controversy between two extremely wealthy

families having extensive business interests in Gauteng. They are the Labuschagne family and the Erasmus family. The persons representing

the two families in this dispute have extensive business experiences. To have as much wealth as the two families have must mean that they were both in business for a considerable amount of time. While their dispute is about protecting their respective commercial interests, its adjudication requires an analysis of compliance with ss 7(1) and 9 of PAJA. The provisions of the two sections read:

Section 7(1):

“7(1) Any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date–

(a) subject to subsection 2(c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection 2(a) have been concluded; or

(b) where no such remedies exist on which the person concerned was informed of the administrative action, became aware and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.”

And section 9:

“Variation of time

(1) The period of -

(a) 90 days referred to in section 5 may be reduced; or

(b) 90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed period, by agreement between the parties or, failing such agreement, by a court or tribunal on application by the person or administrator concerned.

(2) The court or tribunal may grant an application in terms of subsection (1) where the interests of justice so require.”

[2] The applicants, who are mainly from the Erasmus family, seek to review and set aside a decision by the eighth respondent (the Municipality) to approve an application by the Labuschagne family in terms of s 96 of the Town Planning Ordinance 15 of 1986 (the Ordinance) for the establishment of a Township on Portion[….] (the Labuschagne property) (the impugned decision). The township was to be known as Jan Smuts Extension 2. This is understandable as the farm is adjacent to what then was called the Jan Smuts International Airport, and which has now been renamed to the O.R. Tambo

International Airport. The impugned decision was taken on 18 August 2004. The fundamental relief sought by the applicants in paraphrase

form is:

1 declaring that the impugned decision had lapsed.

2

2.1 In the alternative to 1 reviewing and setting aside the impugned decision.

2.2 In the alternative to 2.1 declaring that the land use “shop” contained in the impugned decision does not sanction or permit the development of a regional shopping centre on the Labuschagne property

3 Declaring that environmental authorisation, in terms of the National Environmental Management Act 107 of 1998 (NEMA), is required for the development of the Labuschagne property.

Facts

[3] On 12 December 2001 a notice for the application of a Township on the Labuschagne property was published in the Citizen (an English medium national daily newspaper) and in Beeld (an Afrikaans medium national daily newspaper). On 19 December 2001 a notice of the same application was published in the Provincial Gazette. Again, on 19 December 2001 the notice was published in the Beeld. On 26 December 2001 the notice was published once more in the Provincial Gazette. On 22 January 2002 the 8th respondent’s (Municipality) Forward Planning Department issued a memorandum commenting on the development. On 7 March 2002 the Airports Company of South Africa objected to the development. On 12 December 2002 the Municipality’s Development Planning Department sent a letter to the applicant for the development indicating that it did not support the application in its present form. On 18 December 2002 the environmental authorisation for the development of the Labuschagne property was received. On 18 August 2004 the decision to approve the development of the Township was issued. This is the decision that is impugned. Since 2004, each

year until 2016 the approval was extended for a year. The extension occurred in terms of s 101(2) of the Ordinance. This extension

allowed the developers of the property until 21 January 2017 to develop the property as per the original approval on 18 August 2004.

[4] The first applicant (Tridevco), which is owned by the Erasmus family, intends to construct a regional shopping centre on the Erasmus property. To this end it applied to the Municipality for approval for the development of a Township on this property. The property is located approximately six (6) kilometres away from the regional

shopping centre to be built on the Labuschagne property.

[5] In August 2011 it engaged a firm operating under the name and style of Demacon Market Studies (Demacon) “to compile an executive perspective report with reference to a proposed regional retail node in Witfontein”. Demacon provided a short but fairly extensive report on its findings (the First Demacon report). The author of the report is one Mr Hein du Toit (Mr du Toit) who says he is a “professional Market Analyst”. Crucially, this report contains the following prefatory statement on its cover:

“The information contained in this report has been compiled with the utmost care and accuracy within the parameters specified in this document”

[6] About a month later, sometime in September 2011, the fifth to seventh respondents who are members of the Labuschagne family engaged Demacon to conduct a High Level Assessment of the economic impact of the proposed development of the Labuschagne property. The same Mr du Toit conducted the study and issued a report (the second Demacon report). His report contained the same prefatory statement quoted in [5] above on its cover.

[7] In this second Demacon report, Mr du Toit recorded that the proposed development concept for the Labuschagne property included a land use for “retail” consisting of 120 000m2. He went further to calculate the construction expenses that would be incurred based on 2011 prices. He clearly understood from this that the developers intended to commence construction in 2011. He records that the development would have a direct and indirect impact including “7400 sustained employment opportunities”; would raise sales to the tune of R8.1bn and could contribute R371.8m per annum towards rates and taxes. A reasonable, if not the only inference to be drawn from this report is that he anticipated that the development of retail businesses on the Labuschagne property would go ahead.

[8] On 4 July 2012 the fifth respondent (Mr JJ Labuschagne) acting on behalf of the owners of the Labschagne property filed an objection[1] to the application of Tridevco with the Municipality. The objection was accompanied by a memorandum outlining the grounds upon which it based its objection. The second Demacon report was annexed to this objection, which should have been furnished to Tridevco in time for it to respond. One of the grounds for the objection was that the first Demacon report, which was relied upon by Tirdevco to support its application, did not take “all the competing centres into account that have already been approved.” By this Mr Labuschagne was drawing attention to the approval of the development of the Labuschagne property.

[9] In October 2013 Tridevco employed Demacon once again. This time it was to “perform a comprehensive, specialist market potential assessment to inform strategic planning and investment decisions regarding the future of a mixed use development west of Serengeti Golf and Wildlife Estate, Kempton Park.” This was to meet the objection of Mr Labuschagne to the application for the development of the Erasmus property.[2] The study was conducted by Mr du Toit who furnished a detailed report consisting of 229 pages (the third Demacon report). The third Demacon report too contains the prefatory statement quoted in [5] above on its cover. The report is dense and contains detail of inter alia, the demographics, the existing economic activity, the proposed economic activity, the economic potential of the geographic area,

including the potential competition that would be encountered by the developer should it proceed with its plan to develop the property

under its control. A specific chapter of the study was dedicated to “Retail Market Analysis”. This chapter contained the following table twice (i.e. in two different parts of the same chapter):

Name of Retail Centre Description Glen Gory Mixed Use Development Location: The development is situated on the corner of K68 and Glengory Roads, Benoni which forms part of the Ekurhuleni Metropolitan

Municipality. Land uses: Regional mall ±85 967m2 , specialty value ±36 189m2 , big box ±54 289m2 , automotive, offices, residential and private hospital. Jan Smuts Ext 2 Mixed Use Development Location: The development site is located directly adjacent to Johannesburg International Airport, south-east of Kempton Park, and to the north of Benoni and Boksburg. Land uses: Light Industrial, warehousing and distribution, storage, offices, laboratories, hotel and medical clinic to complement the above land uses

Findings:

The Glengory Road Development and Jan Smuts Ext 2 Development are two projects in close proximity to the area which would be the main competitors to the project.”

[10] Mr du Toit alerted Tridevco to the fact that the proposed developments on the Labuschagne property would be a potential competitor to the proposed development of Tridevco. However, he failed to include in his report the fact that the Labuscagne property had also received approval for the development of “retail” businesses as part of its land use rights on 120 000m2 of its land.

[11] On 27 March 2015 the first to fourth respondents concluded a notarial lease agreement with a registered Trust (the Trust), which is essentially a trust established by the Labuschagne family to house its assets. The Trust owns the Labuschagne property. The fifth to seventh respondents are trustees of the Trust. The notarial lease agreement was registered on 26 June 2015. In terms of the agreement the first to fourth respondents became obliged to develop the Jan Smuts Township on the Labuschagne property. They intended to do this by constructing a regional shopping centre[3] on the said property. They are also obliged to pay the Trust an amount of R1m per month for the duration of the lease which is for ninety-nine (99) years.

[12] On 2 October 2015 the Municipality approved a proposed development of a Township to be known as the Erasmia Extension 29 on the Erasmus property. The Erasmus family intend to draw the benefit of this approval by developing the property by, amongst others, building a regional shopping centre thereon. However, they realised that this development would have to contend with the competition that the development of the Labuschagne property would pose. The development of the Labuschagne property had already commenced some months before the Erasmus property had received its approval.

[13] On 4 February 2016, more than eleven (11) years after the developers of the Labuschagne property had received approval for their development, the applicants launched this application wherein they seek, inter alia, an order reviewing and setting aside the impugned decision. Since prima facie this period falls outside the time period prescribed in s 7(1) (180 days from date of impugned decision) (the prescribed period) the applicants bear the onus to show that it does not actually fall outside the prescribed period. If they fail to do so they have to bring an application in terms of s 9 to extend that time period. It is this issue that falls to be decided here.

The case of the applicants on the prescribed period and its subsequent application for an amendment.

[14] The first applicant (Tridevco) is the owner of a portion of the remaining extent of the Farm Witfontein 15 IR and one of Portion 32 of that farm (the Erasmus property).[4]

[15] The second and third applicants are also owners of shopping centres in the vicinity of the Labuschagne property, although their shopping centres are much smaller than the one proposed for the Labuschagne property. They, nevertheless, make common cause with Tridevco.

[16] The fourth and fifth applicants are private individuals who own residential property in close proximity to the two properties, although they are slightly closer to the Labuschagne property.

[17] The sixth applicant is a private company that owns property in close proximity to the Labuschagne property. The sixth applicant does not provide any details about the property.

[18] The applicants filed a single founding affidavit which was deposed to by a Mr Daniel Jakobus Elardus Erasmus (Mr Erasmus) who is a director or Tridevco, which as noted earlier, is the owner of the Erasmus property. Early on in his affidavit he makes explicit that the reason for the application lies in the fact that Tridevco is concerned about the potential competition that will ensue should the proposed development on the Labuschagne property proceed in terms of the approval granted on 18 August 2004. There is no allegation on his part that the ensuing competition may be unlawful in any manner or form.

[19] The second, third, fourth, fifth and sixth applicants did not each furnish a detailed affidavit in support of the application. Each of them only filed confirmatory affidavits to the one filed by Mr Erasmus. Mr Erasmus does not provide any detail about the nature and basis of their oppositions, nor about their knowledge of the impugned decision. He merely averred that they have a substantial interest in the application. They in turn filed a very short confirmatory affidavit each. All the confirmatory affidavits contain nothing more than the customary averment indicating that they “confirm the contents thereof” insofar as it relates to each of them. Strictly speaking this averment is inadequate as it fails to say that the contents are true and correct, but nothing turns on this. Their affidavits will be read as if the relevant phrase was included.

[20] Hence, while there are six applicants, it is really only Tridevco that drives the application.

[21] In the founding affidavit Mr Erasmus avers that “the applicants have … late in 2015” become aware of the impugned decision. He says further that during May 2015 Tridevco while pursuing its application for the development of a Township on the Erasmus property, “through tenant rumours became aware of an alleged future regional shopping centre” in close proximity to its property. It found the “rumours” disturbing. However, prior to lodging the application for the development it had “done research and investigation by expert market analysis to establish the need and viability of [its intended development] and was not aware of any land use applications or approvals or vested rights which could remotely nullify the viability or sustainability of its intended development”. As it was almost close to having its application finalised it took the view that “the aforesaid rumours was [sic] not only untrue but also impossible.” No details of the “rumours” are furnished, and no reason is given as to why it arrived at the “conclusion” that the “rumours” were untrue. There is also no reference in the founding affidavit to the first Demacon report that Tridevco had commissioned.

[22] Mr Erasmus goes on to state that after Tridevco had “established that the alleged competitive regional shopping centre is located on the (Labuschagne) property and concluded a site inspection (at the Labuschagne) property it noted that certain construction activities were in progress.” Mr Erasmus did not furnish any dates as to when Tridevco “had established” that a competitive regional shopping centre was to be located on the Labuschagne property. The applicants’ (which includes Tridevco) lead counsel was asked during the oral submissions to explain this averment of Mr Erasmus and he indicated, with confidence it should be said, that Mr. Erasmus had stated that it was in May 2015.

[23] Thereafter, Mr Erasmus claims that during the months of June and July 2015 Tridevco investigated the land use rights granted to the Labuschagne property. It employed a town planner to make the necessary enquiries. Mr Erasmus annexed an affidavit from a Mr Peter John Dacomb who is a “Registered Professional Planner” and who conducted the investigation. He deposed to an affidavit in support of the application. His affidavit together with its annexures constituted 50 pages and is relatively detailed. However, conspicuously absent from his affidavit are the pertinent details of when he was engaged; when he commenced his investigation and when he completed it. In the affidavit he acknowledges that he learnt that the approval for the development of the Labuschagne property was in 2004, but does not say when he came to acquire this knowledge. His affidavit dealt in reasonable detail with the issue of whether the approval permitted a development of retail shops on the property. He came to the conclusion that it did not. However, it is clear that both Tridevco and himself were particularly focussed on this issue, for it lies at the heart of the potential competition that Tridevco would encounter once the development of the Labuschagne property was complete. The conclusion he arrived at forms the key basis upon which the review application is founded. Hence, understandably, their focus on this aspect was crucial, but it does not absolve them of the duty

to candidly inform the court of the date when Mr Dacomb came to learn of the impugned decision. Mr Erasmus merely asserts in very broad terms that the “Town Planner” was only “engaged in June or July 2015” and that Tridevco only learnt during “July and August 2015” through the town planner of the land use rights granted to the Labuschagne property. In any event, without giving any detail at all he merely asserts that only “(d)uring the second week of August 2015” did Tridevco become aware of the impugned decision. This averment clearly contradicts what is said in a previous averment (see [22] above), which according to the applicants’ lead counsel indicates that Mr Erasmus had stated that Tridevco came to learn of the impugned decision in May 2015. If the applicants’ lead counsel’s interpretation is correct regarding the averment referred to in [22] above, and it has to be said that his interpretation is clearly based on the most plausible interpretation of that averment, then Mr Erasmus has not been candid with this Court.

[24] During March 2017 the applicants launched an urgent application in this Court seeking an order interdicting the respondents from continuing with the development of the Labuschagne property. During the course of the urgent application the respondents alerted the applicants to the fact that the application fell outside the prescribed time periods and therefore the application was stillborn. The applicants denied that the application fell outside the time periods prescribed in s 7(1). The urgent application concluded on 3 March 2017 with this Court issuing an interim interdict against the respondents. The interdict prevents the respondents from commencing any construction, including earthworks, on the Labuschagne property. It is common cause that the respondents had commenced with the earthworks in 2015.

[25] Thereafter, Mr Erasmus filed a supplementary founding affidavit on 31 March 2017 where he reiterates that Tridevco only came to learn of the decision in mid-August 2015. In fact, he was a bit more specific now and said that it was “on approximately 15 August 2015.” Relying on this averment he contended that the application did not fall outside the prescribed time periods. In addition, he goes on to point out that the original notices of 2001 were “published at a time period of the year where [sic] the administration of business literally comes to a standstill and the predominant part of the nation are on leave for holiday” and that the published notices did not make any mention of a “Regional shopping centre” to be developed on the Labuschagne property. He then draws the conclusion that:

“The First Applicant can, in such circumstances, with respect, hardly be accused of neglect in the detection of the existence of an Application for Township establishment or be blamed of being able to reasonably become aware of the existence of a proposed Township Establishment Application on the [Labuschagne] property.” (Underlining added)

[26] There are two aspects about his explanation that bear noting: (i) he refers only to the first applicant, Tridevco, and makes no mention of any of the other applicants; (ii) he gives no details as to what Tridevco was doing at the time the advertisements or the notices were published in 2001 and why it was unable to acquire knowledge of them, but instead relies in general on an alleged fact that “business comes to a standstill and the predominant part of the nation are on leave for holiday”.

[27] Having tied his belt to the case that the application was filed within the prescribed periods, Mr Erasmus, on behalf of the first applicant, puts on the braces of asking the Court to condone the non-compliance with the prescribed periods. He alleges that the respondents would suffer no prejudice by the condonation of the non-compliance as they only commenced with their development in 2015.

[28] Mr Dacomb filed a confirmatory affidavit to the supplementary founding affidavit. He chose to say nothing of the time periods in his affidavit. The author of the Demacon reports, Mr du Toit, too, filed a confirmatory affidavit to this supplementary founding affidavit. In the papers filed in the urgent application the respondents had pointed out that Mr du Toit admitted in his first Demacon report that the approval of the development on the Labuschagne property included a right to build retail shops on 120 000m2 of the property. Hence both himself and the applicants knew, or ought to have known, of the decision when the third Demacon report was completed in October 2013. Mr du Toit deemed it necessary to deal with this allegation in his confirmatory affidavit. To this end he avers:

“(I) It was my understanding that the intended Jan Smuts Ext 2 development, branded in their Application documentation as a Cargo Mega City, predominantly envisaged a [sic] Aerodrome related development consisting of light industrial, warehousing, distribution facilities, storage, office, laboratories, hotel and a medical clinic, to complement the aforesaid uses.” (Underlining added)

And:

“It was evident to myself from the research done and data obtained, that despite an apparent Environmental Authorisation having been procured for such intended mixed use development, the land use components of Jan Smuts Ext 2, and the Aerodrome related connotation thereto could not facilitate the development of a Regional Shopping Mall without substantial amendments to the abovementioned land use rights.”

“In view of the fact that I, in my capacity as author of the Report, in the context of the above, and with the facts outlined in the Report, did not consider Jan Smuts Ext 2 as a possible competitive Regional Mall Development, but at best a possible future mixed use facility, it would be fair to state that my Principal and or any bona fide reader of such Report, could not reasonable [sic] deduce that the development of a Regional Mall, measuring 110 000m2, as part of Jan Smuts Ext 2, was approved.“

[29] This explanation focussed on the third Demacon report. It says nothing of the first two. In the second report Mr Du Toit specifically noted that the development of the Labuschagne property included a land use for “retail” consisting of 120 000m2. And, he ignores the fact that in this third report he specifically identified the Labuschagne property as a potential competitor to the Erasmus development, even though in this report he failed to mention the land use rights including the right to build “retail” stores. Most important of all he fails to say when he came to know of the approval of the development application of the Labuschagne property, and if he did not come to learn of this at the time he completed the first report in August 2011 why this was so. It has to be borne in mind that he referred to himself as a “professional Market Analyst”. Further, all three of his reports are prefaced with the remark that the information in each of the reports was “compiled with utmost care and accuracy”. Accordingly, if he conducted his assignment with the due diligence and professionalism he claims he did, then he should have discovered in August 2011 that the Labuschagne property had received approval for the development of retail shops. Nevertheless, he discovered this in September 2011. Hence, exercising the same due diligence, he should have alerted Tridevco of this

discovery in the third Demacon report in October 2013. Unfortunately, he did not address this in his confirmatory affidavit to the supplementary founding affidavit. Instead, he referred only to an aspect of the third Demacon report, and made a great effort to show that a reasonable reader of this report could not deduce that the Labuschagne property development included the development of a regional mall. He focussed exclusively on demonstrating this. This is manifest in the three averments of his quoted above in [28]. In my view his understanding of what his third report conveyed to the reasonable reader is not all that relevant. Of greater relevance is the fact that in September 2011 he certainly had knowledge of the approval of the development of “retail” shops on the Labuschagne property.

[30] Prior to the filing of the supplementary founding affidavit all the applicants were alerted to the fact that the respondents had raised the issue of non-compliance with the prescribed period. The second, third, fourth, fifth and sixth applicants filed confirmatory affidavits which were attached to the supplementary founding affidavit. They were obliged to deal with this issue, but they did not. Each of their response was as follows:

a. The affidavit filed on behalf of the second applicant states that the second applicant “associates” itself with the contents of the supplementary founding affidavit. This, of course, says nothing. That affidavit, we know, elicited no new facts on the issue of launching the application on 4 February 2016 only. The deponent to the second applicant’s affidavit does not say a single word on this issue – nothing about when it learnt of the decision, how it learnt of the decision and why it only brought the application on 4 February 2016.

b. The affidavit of the third applicant is deposed to by the same person that deposed to the affidavit for the second applicant. However, when deposing to the affidavit on behalf of the second applicant his name is said to be “Alexander Baladakis” and when he deposed to the affidavit on behalf of the third applicant his name is said to be “John Alexander Baladakis”. Save for this, the affidavit deposed to on behalf of the third applicant is a verbatim copy of the one deposed to on behalf of the second applicant. Hence, the comments made in the preceding sub-paragraph with regard to that affidavit are equally applicable here.

c. The affidavit of the fourth applicant was deposed to by himself. Similarly, the affidavit of the fifth applicant was also deposed personally by the fifth applicant. As we know both of them are individuals claiming to act in their own right. Yet, they too, do not say anything of substance save for the fact that each of them “associate(s)” himself with the contents of the supplementary founding affidavit. Neither of them say anything about where they were in 2001 when the advertisements and the notices were published, where they were in 2004 when the impugned decision was made, when they came to learn of the impugned decision and how they came to learn of the impugned decision.

d. The affidavit on behalf of the sixth applicant was deposed to by one of its Directors. He, like all the others, says that the sixth applicant “associates” itself with the contents of the supplementary founding affidavit. The problems identified with regard to all the other confirmatory affidavits referred to in these sub-paragraphs are replicated here.

[31] In essence they chose to remain silent on an issue of fundamental importance, when in fact they were obliged to be forthcoming with the Court. Instead they left the Court completely in the dark about each of their circumstances. It bears reminding that two of the persons that deposed to the confirmatory affidavits (for the second, third and sixth applicants) are directors, while the other two individual applicants (fourth and fifth applicants) claim to be “business(men)”. These are no ordinary lay persons.

[32] That constitutes the sum total of the applicants’ case as to why they launched the application more than 11 years after the impugned decision was taken.

[33] In their answer the respondents not only repeated what they said in the urgent application, but go a step further and draw the applicants’ attention to the provisions of s 9 and to the learning from the Supreme Court of Appeal on this issue. They make plain to the applicants that they are required to bring a substantive application in terms of s 9, wherein they are required to explain the delay of 11 years and seek an extension of the prescribed time period. None of the applicants heeded this message. Tridevco alone filed a substantive replying affidavit deposed to by Mr Erasmus, wherein it contended that they had explained why it came to learn of the decision on or about 15 August 2015. Should this explanation be accepted then compliance with s 7(1) had been established and s 9 would not apply. Further, in order to cater for the possibility that the explanation was not accepted it had stated in its supplementary founding affidavit that it would, in time, be bringing an application for condonation for the non-compliance with the prescribed time periods and it still intends to do so. Further, it said that even if the applicants are unsuccessful in their intended application for condonation they nevertheless are not non-suited, as non-compliance with the prescribed time periods only affects the prayer expressed in paragraph 2.1 of their notice of motion. The applicants would persist

with the other prayers. Hence, as far as the issue of non-compliance with the prescribed time periods is concerned the replying affidavit adds nothing new. As pleadings had closed, the parties filed their respective heads of argument. The applicants filed their heads of argument on 20 March 2018, and the respondents filed theirs on 20 April 2018. The hearing was set down on a special motion roll for three days commencing on 8 May 2018. By this stage the applicants had still not launched the application in terms of s 9. In fact, they contended in the heads that the application had complied with the prescribed time periods.

[34] All the parties appeared on the first day of the hearing ready to proceed. The applicants’ counsel informed me that the applicants intended to move a notice of amendment from the bar. I indicated that I would not entertain such a motion from the bar, but would expect it to be reduced to writing. I issued directions as to the time periods concerning the bringing of the application and responses thereto by the respondents.

[35] On 10 May 2018 the applicants filed and served an application for an amendment to their notice of motion. The amendment they sought is one of inserting a new prayer in the notice of motion calling on this Court to condone in terms of s 9 the late filing of the original application. The deponent to the founding affidavit supporting the application to amend the notice of motion is the attorney of record for the applicants. He claims that “the grounds for such extension/condonation were fully set out in the applicants’ founding affidavit and the applicants’ supplementary founding affidavit.” But, “(d)uring the course of drafting the heads of argument it was in the context of the averments made by the Respondents, in that regard, considered as prudent, that a prayer for extension/condonation formally has to be incorporated in the Notice of Motion.” In other words, they deemed it necessary to bring the application one year after they were appraised of the need to do so, because it was only when they prepared their heads of argument that they realised they had to do so. This claim is extraordinary. The applicants were alerted to the respondents’ position during the urgent application, and that position was substantiated in the answering affidavits which were filed in June 2017. The applicants replied to these affidavits and refused to heed the counsel of the respondents that

they should bring a substantive application in terms of s 9. Yet, in May 2018 their attorney claimed that only when drafting the heads of argument did they come to the realisation that they may need to apply for “an amendment to the notice of motion.” His claim is contradicted by the objective facts and the fact that it is made by an attorney is disturbing. Moreover, they still refused to bring a substantive application in terms of s 9.

Has there been compliance with the prescribed periods?

[36] The applicants furnished no new facts in their replying affidavit and in the founding affidavit supporting the application for an amendment. Hence, the issue regarding compliance with s 7(1) had to be decided solely on the basis of the averments in the founding affidavit and supplementary founding affidavit (together with all the annexed affidavits thereto) that are agreed to by the respondents, and by what the respondents said in their answer. Having regard to this it is clear from the above that Tridevco’s claim that it only came to know of the impugned decision in mid-August 2015 is, in my view, highly improbable. It certainly came to know of it earlier, or at least should reasonably have been expected to be aware of it. I say so for the following reasons:

a. It says nothing of what their position was from 2001 when the notices and advertisement were published. There is no reason why it should not have gained knowledge of the application then and thereby make the necessary interventions if it wanted to protect its interests.

b. It should have known of the impugned decision in August 2011 when it received the first Demacon report, or it should have through other efforts have discovered this, bearing in mind that it was about to spend hundreds of millions of rands towards achieving its development plans. After all, it employed Demacon to do a study about the prospects of their development plans. For it not to have learnt of this potential competition at that stage is highly unlikely.

c. In any event, on or about 4 July 2012 it must have learnt of the objection by Mr Labuschagne to its development plans as it should have received a copy of the objection. It would therefore have received the second Demacon report which was annexed thereto. Its silence on this issue allows for only one inference – it did receive the objection and had it scrutinised the objection it would have learnt of the impugned decision.

d. Its employment of Demacon in October 2013 meant that it should, at least, by then have learnt of the Labuschagne property development as Mr du Toit of Demacon had known of it since September 2011 when he completed the second report.

e. Mr Erasmus is no ordinary lay person, he is a seasoned businessman.

f. Tridevco is a company with considerable resources. It, like Mr Erasmus, has been in the business of property development for many years.

[37] Having rejected Tridevco’s claim that it only learnt of the impugned decision in mid-August 2015, the ineluctable conclusion that follows is that its application for reviewing and setting aside of the impugned decision falls outside the prescribed time periods.

[38] The same applies to the other applicants. They give no details of when they came to learn of the impugned decision. It was their duty to do so. Their failure means that it cannot be accepted that they only learnt of the decision when Tridevco did (assuming for the moment we accept that Tridevco only came to learn of it in mid-August 2015), for they have to indicate why they did not learn of it earlier, or why they could not reasonably be expected to have done so. And, as I have found that Tridevco’s claim that it came to learn of the impugned decision only in mid-August 2015 is inconsistent with the objective facts, it means that even if they were completely dependent on Tridevco for this knowledge (a questionable assumption at best) they, like Tridevco, would have learnt of it well before mid-August 2015. In other words, if Tridevco did, or reasonably should have learnt of it in August 2011 or September 2011 or October 2013, then so should they.

[39] Accordingly, their application too falls outside the prescribed time periods.

The application for an amendment

[40] As mentioned above the applicants elected not to bring a substantive application in terms of s 9. Instead they deemed it appropriate to bring an application for an amendment to their notice of motion by inserting a new prayer. In their view, this is all they were required to do. In my view they are wrong. In Passenger Rail Agency of South Africa Sutherland J dealt with exactly this issue. He concluded that an application to extend the time period should be brought. He stated, and I concur with his statement, that:

“(w)hat section 9 envisages is not a condonation application, but an application to extend the period of 180 days. In the absence of an agreement between the litigants, a party who needs an extension must motivate it with regard to the ‘interests of justice’. On that premise, a focussed application is required, not an en passant condonation application.” [5]

[41] Section 9 allows this Court to extend the prescribed time periods if the interests of justice require that they be extended. In our case, the applicants seek an extension of the period by when they should bring the application to 2 February 2016. The impugned decision as we know was taken on 18 August 2004.

[42] The indulgence offered by s 9 is not there for the asking. An applicant seeking to take advantage of it must make out a case demonstrating that it warrants the indulgence. For this to happen the applicant must at least proffer a satisfactory explanation for its delay in bringing the application.[6]

[43] The applicants were counselled by the respondents on more than one occasion to bring the application in terms of s 9. They did not just ignore the counsel, they resisted it on the basis that it was unnecessary for them to seek the indulgence afforded by s 9. That has been their attitude all along. On 31 March 2017 when Mr Erasmus indicated in his supplementary answering affidavit that the applicants would seek an amendment to the notice of motion, he did not produce any facts additional to those already alleged in the founding affidavit or even elaborate on the facts alleged there. His attitude was that those alleged facts provided a sufficient basis for the granting of the amendment. And so, when the matter was set down for hearing on 8 May 2018 the applicants’ counsel informed me that the applicants intended to move a motion for amendment from the bar. The respondents strongly objected to this on the basis that they needed to have sight of the intended amendment in order to properly exercise their right to oppose it. This resulted in a direction being issued by myself to the effect that the application for an amendment be reduced to writing and the respondents be given an opportunity to respond in writing. Only then did the applicants really come to terms with the importance of need to secure the indulgence. They then delivered a notice of an application to amend their

notice of motion by adding a new prayer. The prayer they wished to add is: “Condonation be granted to the Applicants in terms of s 9 of [PAJA]”. They filed a very brief affidavit in support of the application wherein it is averred inter alia that the applicants relied on the same factual allegations they made in the founding affidavit and supplementary founding affidavit to support this application. Strictly speaking it is not an application in terms of s 9, but had they brought the application in terms of s 9 they would have filed the same affidavit, so said their counsel, and therefore nothing should be made of the fact that it is an application for an amendment as opposed to an application in terms of s 9. I am willing to accept this submission without deciding whether they are correct or not and will treat the application as one brought in terms of s 9.

[44] The problem though is that the affidavit they filed in support of this application for an amendment contained averments about alleged facts that are not ad idem with those alleged in the original founding and supplementary founding affidavits: their explanation for taking so long with the launching of the review application is not consistent. Moreover, I have already recorded in [36] to [39] that they do not provide an explanation for the entire period of the delay. I, therefore, come to the conclusion that the applicants’ explanation for bringing this application so late in the day is woefully inadequate.

[45] The failure to provide a reasonable explanation for the delay should not be treated lightly. The Court and all the other litigants involved in the case, whether they oppose the relief or not (as in this case where the Municipality is not opposing the application but is affected by the outcome nevertheless), deserve a full and candid explanation of why the delay occurred, under what circumstances it occurred and why it is not so significant as to tilt the scales of justice against the applicants seeking the indulgence. Advice to this effect has already been proffered by the Constitutional Court. Litigants need to take heed:

“While a court should ‘be slow to allow procedural obstacles to prevent it from looking into the challenge to the lawfulness of an exercise of public power’, it is equally a feature of the rule of law and that undue delay should not be tolerated. Delay can prejudice the Respondent, weaken the ability of a court to consider the merits of a review, and undermine the public interest in bringing certainty and finality to administrative action. A court should therefore exhibit vigilance, consideration and propriety before overlooking a late review, reactive or otherwise.”[7]

[46] In my judgment the delay in the present case is so extensive that it should not be overlooked. The explanation for the delay is neither full nor satisfactory. In fact, it is contradictory. It is, in two words, simply unacceptable. In these circumstances the Court, in my view, is entitled to refuse the amendment without examining the merits of the applicants’ case. In this regard what the Supreme Court of Appeal has said concerning glaring non-compliance time periods expressed in rules of court, is apposite:

“In applications of this sort the prospects of success are in general an important, although not decisive, consideration. It has been pointed out (Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein [1985] ZASCA 71; 1985 (4) SA 773 (A) at 789C) that the court is bound to make an assessment of an applicant's prospects of success as one of the factors relevant to the exercise of its discretion, unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration. I have not dealt with the applicant's prospects of success on appeal because, in my view, the circumstances of the present case are such that we should refuse the application for condonation irrespective of the prospects of success. This court has often said that in cases of flagrant breaches of the rules, especially where there is no acceptable explanation therefor, the indulgence of condonation may be refused whatever the merits of the appeal.”[8]

[47] The phrase “whatever the merits of the appeal” is not an empty one. It means that even if the merits of the defaulting party’s case is strong it would be denied further access to the court[9] because it fails to provide an adequate and full explanation for its failure to comply with time periods set out in rules of court or in statutes, and because the other party is entitled to finality.[10] This is a necessary part of ensuring that the administration of justice is not unduly compromised. In Ferreira[11] the case of the party seeking the condonation was not without merit and yet it was refused condonation. The pedigree[12] for this principle is so well established that it has become trite.

[48] However, for the sake of completeness I will examine the applicants prospect of success with the review application. On this issue, the applicants claim that the notice was ambiguous in that it did not categorically state that approval was sought for retail shops. Instead, in its English version it said that the approval sought was for “wholesale trade shops”. In other words, it is a single concept. The Afrikaans version of the notice on the other hand, described it as two different concepts: “Groothandel, winkel”. In essence, the only difference between the two is that in the Afrikaans version a comma is found between the first and

second concept. The lack of a comma in the English version had transformed the two concepts into one and is therefore ambiguous.

This the applicants say caused confusion to any reasonable reader who may have been considering lodging an objection to the proposed

development. For this reason the applicants contend that the process that led to the decision was fundamentally flawed for it denied a potential objector the ability to exercise its right to object. This resulted in the decision being so tainted that it has to be set aside for being irrational and unlawful. The point taken here is a theoretical one. There is no suggestion that any of the applicants were confused by the English version of the notice, or indeed that there was any member(s) of the public, invited by the notice to voice their concerns about the proposed development, who was confused by the English version of the notice. During the oral presentation the applicants’ counsel was asked whether the concept “wholesale trade shops” existed as a distinct category in the commercial world. His answer was not to the best of his knowledge. I am therefore not able to agree with the applicants that a reasonable reader would have been misled by the English version of the notice. Hence I find that, apart from the fact that the point is theoretical calling for speculation from this Court as to how any reasonable

reader would have interpreted this notice, the contention of the applicants is without merit. I do not believe any reasonable reader

would have been confused by the English version of the notice. There is a further problem for the applicants. The advertisements that were issued concomitantly with the notice clearly indicated that approval was sought for both “wholesale shops” and “shops”. So even if interested persons could have been confused by the English version of the notice those persons, if they were reasonable, would have encountered no difficulty in clearing the confusion without expending great effort in doing so. I therefore come to the conclusion that the applicants’ contention on the merits of the case (that there was a procedural irregularity so significant that it rendered the impugned decision unlawful and irrational) does not enjoy any real prospect of success.

[49] It is accepted that this litigation is of great significance to the respondents. They have invested a considerable amount of money towards acquiring the rights to develop the Labuschagne property. They have commenced with its construction. They have entered into various contracts, one of which involves the obligation to pay (first to fourth respondents) and rights to receive (fifth to seventh respondents) one million rands per month. The development of the Labuschagne property has been put on hold since the applicants secured the interim interdict. Put mildly, the respondents are clearly prejudiced by the application and they are entitled to finality and to arrange their affairs in accordance with the rights they have secured.

[50] There is, therefore, no reason for me to exercise any discretion to extend the prescribed time within which to bring the application for review. Thus, I decline the invitation to do so and hold that the application for the amendment should be refused. This means that the application to review and set aside the impugned decision falls outside the prescribed time periods. Accordingly, this Court does not have the jurisdiction to entertain it.

[51] That deals with the main part of this application.

Declaratory relief

[52] Another relief was sought that is not affected by s 7. It is for two declaratory orders. The main one is an order that declares that the township approval received in the impugned decision has lapsed under and in terms of s 72(1) of the Ordinance. In the alternative to this declaratory order is another declaratory order that is sought, which holds that the reference to the land use “shop” in the impugned decision does not allow for the development of a regional or other shopping centre. And in the alternative to this alternative order that is sought is another one to the effect that it be declared that environmental authorisation in terms of NEMA is required for the development of the Labuschage property. None of the two alternative prayers were pursued during oral submissions and rightly so. There is no basis for any of the two prayers to be granted.

[53] Section 72(1) of the Ordinance reads:

“An Applicant who has been notified in terms of section 71(4) that his application has been approved shall, within a period of 12 months from the date of such notice, or such further period as the Director may allow, lodge for approval with the Surveyor-General such plans, diagrams or other documents as the Surveyor-General may require, and if the Applicants fails to do so, the application shall lapse.”

[54] It is doubtless that the requirement to lodge “plans, diagrams or other documents for approval with the Surveyor-General” within 12 months of receiving notice of the approval of the township as set out in the Ordinance is peremptory and that failure to do so automatically results in the approval to develop the township lapsing. However, there is a caveat to this; it is that the period of 12 months can be extended by the Director (the caveat). This is done by application to the Director, who may at his/her discretion grant it.

[55] It is averred in the answering affidavit of the fifth to seventh respondents that the Director granted an extension of time each year which remained valid until 21 January 2018. In 2015 they commenced construction. In reply, the applicants took issue with the averment stating that there was no supporting documentation. This prompted the fifth to seventh respondents to apply to file a further affidavit. The affidavit they sought to file merely introduced the documentation concerning each application for an extension of the time period within which to lodge the “plans, diagrams or other documents for approval with the Surveyor-General”. They did not intend to introduce any new evidence, but merely to augment their evidence presented in the form of an averment under oath that they had secured an extension of time until 2018. The applicants were furnished with the application to file a further affidavit more than two months before the hearing. The applicants did not file any opposing affidavit, but indicated that they opposed it being admitted. The opposition was persisted with at the hearing. Their counsel indicated that their reason for opposing it was that the fifth to seventh respondents should have included this documentation in their answering affidavit. Since they failed to do so they should first apply to this Court to have it included and only once this Court, in the

exercise of its discretion, granted the application place the documentation before Court. Instead they applied to have it admitted and placed it before the Court at the same time. This he contended constituted an irregularity. The contention in my judgment is wholly wrong. The fifth to seventh respondents followed the correct procedure by applying to have the affidavit, together with the documents which were annexed thereto admitted. They explained why the documentation was not annexed before. They said that in their view it ought to have been part of the rule 53 record and only realised after receiving the replying affidavit that it was not. It is trite that a party that wishes to file a further affidavit must apply to have it admitted and can only use it once it is admitted.

The application must contain the very evidence they wish to introduce and if the application is granted they can rely on it, if not then the evidence is discarded and the issues in the case are determined without any recourse to the evidence. I, therefore, reject the contention that the process utilised to apply for the filing of a further affidavit was irregular.

[56] As mentioned, the affidavit contained no new averments. The averment in the answering affidavit was repeated and the supporting documentation was annexed. The applicants were not able to show that they would suffer any prejudice by its admission. In fact, it was conceded on their behalf that there was none. It was also conceded that the evidence could have been part of the rule 53 record that was filed by the Municipality and not the fifth to seventh respondents. I, therefore, hold that the affidavit should be admitted.

[57] Once admitted the contention of the applicants that the rights afforded to the respondents by virtue of the impugned decision had lapsed is shown to be factually and legally incorrect. The evidence shows beyond doubt that the caveat contained in the Ordinance became effective until 2018. Accordingly, the call for this declaratory relief too has no merit.

Costs

[58] The first to fourth respondents seek a punitive costs order. They alerted the applicants to the fact that they would be seeking such an order. The grounds upon which they base their claim are: one, the applicants have deliberately ignored the fact that they had not complied with s 7(1) despite being advised on more than one occasion of this: two, they have, by taking advantage of the interim interdict, thereby caused the first to fourth respondents to carry the costs of the lease (R1m per month) for over a year; three, ensured that the development of the Labuschagne property was delayed for all this time resulting in an increase in the cost of the intended development; and four, secured an undue advantage for the development of the Erasmus property through this delay and increased costs that the development of the Labuschage property endured. All this they say was done so that they could financially prejudice their competitor.

[59] I am in agreement with the first to fourth respondents that the conduct of the applicants in bringing this application and in the manner they pursued the litigation is such that a punitive costs order would be appropriate. They failed to comply with a directive of the Deputy Judge President to file their heads of argument by not later than 28 February 2018. Having failed to file their heads of argument and having furnished no explanation therefore the respondents were constrained to call for a meeting with the Deputy Judge President. This was done on 14 March 2018, two weeks after the heads were due. This prompted the applicants to file their heads, which they did five days later on 19 March 2018. It bears mentioning that the pleadings had closed months before and that the directive of the Deputy Judge President resulted from a meeting held with the parties after pleadings had closed. The meeting took place on 23 October 2017. A day or two thereafter the Deputy Judge President issued the directive ordering the applicants to file their heads by 28 February 2018. They were given four months within which to file their heads. Not only did they not comply with the directive they also failed to explain why they failed to comply. The heads that were

filed were not signed by their counsel who were involved in the matter from the moment the urgent application was brought. In fact,

their counsel were present in the meeting of 23 October 2017 with the Deputy Judge President when, inter alia, the filing of heads of argument was discussed. The heads were only stamped by their attorneys. Then a week before the respondents’ heads of argument were due the applicants filed new heads of argument, only this time they called them “Concise heads of argument”. Despite the title, they were fairly comprehensive and this time they were signed by their counsel. They sought no approval from the Deputy Judge President for this. They simply licenced themselves with the right to do so. Their conduct resulted in the respondents being given only one week to attend to their new heads. This is not conduct that I would expect from diligent officers of this Court.

[60] In addition to what is said in the previous two paragraphs it has to be noted that the applicants were not always candid with the Court. The conduct deserves censure.

Order

[61] The following order is made:

1 The application for an amendment to the notice of motion is dismissed.

2 The application is dismissed.

3 The application of the fifth to seventh respondents to file a further affidavit is granted.

4 The applicants are to jointly and severally pay the costs of the first to fourth respondents which costs are to include those occasioned by the employment of two counsel and are to be taxed on an attorney and client scale.

5 The applicants are to jointly and severally pay the costs of the fifth to seventh respondents which costs are to include those occasioned by the employment of two counsel and are to be taxed on a party and party scale.

Dates of hearing:

20, 21 June 2018

Date of judgment:

3 September 2018

For the Applicants:

M Maritz SC with J A Venter

Instructed by:

Adriaan Venter Attorneys & Associates

For the First to Fourth Respondents: M Rip SC with M Majozi

Instructed by:

Ivan Pauw & Partners

For the Fifth to Seventh Respondents: G F Porteous with S Wentzel

Instructed by:

Glynn Marais Attorneys

[1] There were actually five objections filed, but it really was a single objection that was filed five times as it was on behalf of five different legal entities.

[2] It is alleged in the answering affidavit of the first to fourth respondents that it was presumably done in order to meet the

objection of Mr Labuschagne to the development on the Erasmus property. This is not specifically denied.

[3] A regional shopping centre is one where the Gross Floor Leasable Area (GFLA) is between 50 000 and 100 000m2

[4] I refer to them as the Labuschagne property and the Erasmus property because the Labuschagne family and the Erasmus family are really the owners of the two properties that lie at the centre of this dispute.

[5] Passenger Rail Agency of South Africa v Siyagena Technologies (Pty) Ltd and Others [2017] ZAGPPHC 138 (3 May 2017), at [20]. See too: Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality 2017 (6) SA 360 (SCA) at [8] – [12]

[6] City of Cape Town v Aurecon (Pty) Ltd 2017 (4) SA 223 (CC) at [45] – [46]

[7] Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 662 (CC) at [160]

[8]

CSARS v Candice Jean van der Merwe 2016 (1) SA 599 (SCA) at [19] Citation of authorities omitted

[9] P E Bosman Transport Works Committee v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D

[10] Mbutuma v Xhosa Development Corporation Ltd 1978 (1) SA 681 (A) at 686 H- 687A

[11] Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281H-282A

[12] Wolfroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41E-F; Gwetha v Transkei Development Corporation Ltd and Others 2006 (2) SA 603 (SCA) at [22] - [23]; Associated Institutions Pension Fund and Others v Van Zyl and Others [2004] 4 All SA 133 (SCA) at [46] – [47]; State Information Technology (SOC) Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) at [43] – [44]