BSB International Link CC v Readam South Africa (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Ponnan JA, Majiedt JA, Swain JA, Victor AJA and Kathree-Setiloane AJA
• Judgment Date: 13 April 2016
• Citation: 2016 (4) SA 83 (SCA)
• Docket Number: 279/2015 [2016] ZASCA 58
• Hearing Date: 03 March 2016
• Counsel: DJ Vetten for the appellant. GF Porteous for the respondents.
• Court: Supreme Court of Appeal

Ponnan JA and Swain JA (Victor AJA and Kathree-Setiloane AJA concurring): D

[1] This is an appeal against an order granted by the Gauteng Local Division, Johannesburg (Mayat J), at the instance of the first respondent, Readam South Africa (Pty) Ltd (Readam), directing that a building owned and constructed by the appellant, BSB International Link CC (BSB), be demolished to the extent necessary to ensure compliance with E the Sandton Town Planning Scheme (the scheme). The order granted reads as follows:

'1.

It is declared that the building erected on Erf 426, Parkmore Township, Registration Division IR, Province of Gauteng, measuring 991 metres square (the property), has been erected and F continues to be erected without the prior approval of building plans by the First Respondent [the City of Johannesburg Metropolitan Municipality] in terms of section 7 of the National Building Regulations and Building Standards Act 103 of 1977 (the NBSA), as required by section 4 of the NBSA, and is accordingly unlawful.

2.

It is further declared that the building erected on the property and G presently being erected on the property, has been erected and continues to be erected in contravention of the provisions of the Sandton Town Planning Scheme, 1980 (the Scheme), and is accordingly unlawful.

3.

The Second Respondent [BSB] and/or its successors in title to the property is/are directed to partially demolish the building erected H on the property so as to ensure that such building shall be fully compliant with

3.1

the coverage limit of 60% imposed by the Scheme;

3.2

the parking requirements imposed by the Scheme; and

3.3

the remaining provisions of the Scheme. I

4.

It is declared that no such partial demolition of the building on the property in terms of paragraph 3 above shall take place unless and until building plans have been approved by the First Respondent in terms of section 7 of the NBSA.

5.

It is declared that no such partial demolition of the building on the property in terms of paragraph 3 above shall take place unless and until the First Respondent has satisfied itself that the building J

Ponnan JA and Swain JA (Victor AJA and Kathree-Setiloane AJA concurring)

A plans and all buildings depicted therein are compliant with the 60% maximum coverage limitation imposed by the Scheme, and also compliant with the requirements of the Scheme relating to on-site parking for motor cars as well as other applicable provisions of the Scheme.

6.

Irrespective of whether or not the building on the property has B been partially demolished and modified in terms of 3 above, the building on the property shall not be used in contravention of the Scheme, nor shall the property be occupied until a valid certificate of occupancy has been issued by the First Respondent in terms of section 14(1)(a) of the NBSA.

7.

The Second Respondent is interdicted from occupying or permitting occupation of any building on the property until such time as C a valid certificate of occupancy in terms of section 14(1)(a) of the NBSA has been issued by the First Respondent in respect of such building.

8.

The Second Respondent is directed to pay the Applicant's costs.'

D [2] Although the City of Johannesburg Metropolitan Municipality (the municipality) was cited as the first respondent, it filed no answering affidavit and took no part in the proceedings. This was despite the fact that the primary relief sought by Readam, in terms of rule 53 of the Uniform Rules of Court, was directed at reviewing and setting aside the building plans approved by the municipality in terms of s 7 of the E National Building Regulations and Building Standards Act 103 of 1977 (the NBSA).

[3] The supine and uncooperative attitude of the municipality made the task of the court a quo in resolving the dispute between BSB and Readam all the more difficult. It also resulted in an incomplete record being F produced by the municipality as required in terms of rule 53.

[4] It is clear from the evidence that BSB has also played no small part in frustrating Readam's attempts to obtain details of the approval of the building plans by the municipality. It also exploited the ineptitude of the G municipality, with the clear objective of obfuscating and delaying matters to enable the building to be completed prior to the court adjudicating the dispute between the parties — the goal being, no doubt, to present the court with a fait accompli, in the form of a completed building. Against this background it comes as no surprise that BSB, in response to H Readam's application, launched a counter-application founded on the complaint that it was prejudiced in its defence of the main application, by the inadequate record furnished by the municipality. BSB also sought orders against Readam and the municipality, directing Readam to itemise all documents and other information which Readam contended were missing from the record filed by the I municipality. Unsurprisingly an order was also sought staying the review proceedings pending the municipality's furnishing of the missing portions of the record.

[5] In support of its counter-application BSB also relied upon an agreement reached between BSB and Readam at a case-management meeting held before Claassen J, where the learned judge directed that the J provisions of rule 35 relating to discovery, inspection and the production

Ponnan JA and Swain JA (Victor AJA and Kathree-Setiloane AJA concurring)

of documents would serve as the basis for obtaining the missing portions A of the record allegedly required by BSB.

[6] The counter-application was correctly dismissed on the facts. Somewhat surprisingly BSB thereafter sought leave to appeal primarily on the basis that the court a quo had erred in dismissing its counter-application (for discovery of the full record). BSB asserted that it had accordingly B been denied a proper opportunity to be heard and defend itself against the challenges made by Readam. The present appeal is with the leave of this court.

[7] The relief sought by BSB on appeal is that, as a consequence of the C inadequate record, the order of the court a quo falls to be set aside in its entirety and replaced with one compelling discovery by the municipality. According to BSB the matter should thereafter only be enrolled when the municipality has complied with that order. Assuming in favour of BSB (without deciding) that the dismissal of the counter-application is appealable, [1] as we shall show it is clearly without merit. D

[8] BSB submits that there is a dispute of fact on the papers as to whether the requirements of the scheme have been contravened as regards (a) the permissible coverage of the building on the site, and (b) the provision of adequate parking. Each of those requirements will be considered in turn. E

Coverage

[9] In terms of the scheme, the property is zoned business 1 and is situated in height zone 0. The building comprises new retail and/or office space. Clause 25 of the scheme regulates coverage by reference to table H. It is clear, in respect of a development such as this, that the maximum coverage of a property by a building cannot exceed 60%. F

[10] As correctly submitted in Readam's heads of argument, the initial allegation made by Readam in its founding affidavit, based upon the evidence of Mr Kevin Wilkens, a town planner, was that the coverage of the property by the building as at April 2013 was at least 80%. G The response by BSB in its answering affidavit was: 'The allegations herein made are denied. The evidence is in any event inadmissible.' No basis was given as to why it was contended that the evidence, which was confirmed by Wilkens in a supporting affidavit, was inadmissible.

[11] As pointed out by Readam in a supplementary affidavit filed in H terms of rule 53(4), if BSB genuinely held the view that there was no contravention of the maximum-coverage limitation of 60%, it was open to it to adduce evidence from its architect or some other suitably qualified expert, who could have authoritatively stated the precise area of the property covered by the building. I

Ponnan JA and Swain JA (Victor AJA and Kathree-Setiloane AJA concurring)

A [12] Readam had engaged the services of a land surveyor, Mr Kevin Meluish, who measured the coverage of the site by the building as at October 2013 and found this to be 853,58 square metres or 86,13% of the total area of the property, which is 991 square metres. The following response of BSB is revealing:

B 'This appears to be a gratuitous précis and restatement of allegations and arguments and interpretations thereof already made in earlier affidavits. This is primarily a matter for submission and I repeat what has been stated in the earlier affidavits filed in this matter. The argument herein contained will be dealt with at the hearing of this application.'

C [13] The direct expert evidence of Mr Meluish, which addresses a central issue in the dispute between the parties, ought not to have been simply glossed over by the deponent to BSB's affidavit, Mr Mike Slim, its sole member. What had been stated in the earlier affidavit by Mr Kevin Wilkens was simply denied by Mr Slim. When counsel for BSB was asked D why the measurements made by Mr Meluish were not disputed, he submitted somewhat faintly that the coverage of the site had already been denied and it was not necessary to do so again. It is quite clear that BSB, in not countering Mr Meluish's evidence, failed to raise a genuine and bona fide dispute of fact in this regard. As stated in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another2008 (3) SA 371 (SCA) ([2008] 2 All SA 512; E [2008] ZASCA 6) at 375H – I:

'When the facts averred are such that the disputing party must necessarily possess knowledge of them and be...