Moola v Kwa-Dukuza Municipality

• Jurisdiction: South Africa
• Judge: Chetty J
• Judgment Date: 21 April 2017
• Docket Number: 2194/2017
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 20 March 2017
• Citation: 2017 JDR 0758 (KZD)

Chetty J:

[1]

The applicants launched an urgent application for an interim interdict in the following terms:

a.

That pending the determination of a review application to be launched by the applicants concerning the decision of the first respondent, alternatively, the decision of the first respondent's Tender Adjudication Committee taken on 17 January 2017, to sell the immovable property described as Portion 10 000, Erf 478 and Erf 264 Stanger, in extent 20.9 hectares, 2.298

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hectares and 4047 square meters respectively (which have been or are to be consolidated as Erf 12666 Stanger) ("the property") to the second respondent, the second respondent is interdicted and restrained from:

a.

taking occupation or possession of the property;

b.

commencing or continuing with excavations or any form of construction on the property.

b.

The first respondent is interdicted and restrained from authorising, to the extent that it may be required to do so:

i.

the occupation or possession of the property by the second respondent; and

ii.

commencement or continuation of construction work and all excavations on the property by the second respondent.

c.

That, within 15 days of the granting of this order, the applicants are to institute the review application aforesaid, failing which the interdict against the first and second respondents will lapse and be of no force and effect;

d.

That the first and second respondents, jointly and severally, the one paying the other to be absolved, are to pay the applicants costs.

e.

That the provisions of prayers 1(a) and 1(b) above operate as interim relief pending the final determination of this application.'

[2]

The application for a temporary interdict was opposed by the first respondent ('the municipality') and the developer ('DRT'), the second respondent. An undertaking was sought and obtained from DRT that whilst the parties undertook to exchange affidavits, it would maintain the status quo and no work or construction related activities would take place on the property pending the finalisation of the urgent application.

[3]

It is trite that in order to secure an interim interdict the following must be established (1) A prima facie right on the part of the applicant; (2) A well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is granted; (3) A balance of convenience in favour of granting the interim relief; and (4) The absence of any other satisfactory remedy available to the applicant. See Johannesburg Municipal Pension Fund & others v City of Johannesburg & others

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2005 (6) SA 273 (W) para 8. In Joubert NO & others v Maranda Mining Company (Pty) Ltd & others [2010] 2 All SA 67 (GNP) para 26 it was held that:

'The applicants are obliged to show that the right which is the subject-matter of the main application which they seek to protect by means of interim relief is clear, or if not clear, is prima facie established, though open to some doubt. If the right is only prima facie established then it must be shown that there is a well-grounded apprehension of irreparable harm to the applicants if the interim relief is not granted and they ultimately succeed in establishing their right; that the balance of convenience favours the granting of interim relief; and that the applicants have no other satisfactory remedy.'

[4]

When the matter came before me, the applicants submitted that in light of the Court being in possession of the affidavits of all the parties, it was more prudent that the Court consider the granting of a final order as opposed to the granting of an interim relief. See National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) where the Court said:

'[26] Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities.'

[5]

This approach, in my view, accorded with the practicalities of the circumstances in this particular case as work on the development site had come to a halt or stalled, and would remain in that state if an order were granted in favour of the applicants, until the finalisation of the review application which the applicants intend to bring. In contrast to the requirements for interim relief, when seeking a final order the applicants would have to show a clear right on their part; an injury actually committed or reasonably apprehended and that there is no other satisfactory remedy available to the applicant. The requisites for the right to claim for a final interdict were expressed in Setlogelo v Setlegelo 1914 AD 221 at 227.

[6]

At the outset it is worth remembering, particularly for reasons that will become apparent from what follows, that in motion proceedings the affidavits serve both as the pleadings and the evidence relevant to the issues between the parties, and a

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party can only be expected to deal with averments raised by the other side and not with allegations possibly anticipated but which are not made. See Minister of Law and Order & another v Dempsey 1988 (3) SA 19 (A) at 37G-J. It is trite that an applicant in motion proceedings must make out his or her case and produce all he desires to use in support of it in his affidavit filed with the notice of motion and is not permitted to supplement it in his replying affidavit and still less to make out a new case in his replying affidavit. See Minister of Land Affairs and Agriculture & others v D & F Wevell Trust & others 2008 (2) SA 184 (SCA) at 200C-E

[7]

The first applicant is a member of the second applicant, a voluntary association whose members are ratepayers within the area of the KwaDukuza Municipality. The third applicant is a respected member of the legal profession residing and practicing in the area of KwaDukuza. He is also a member of the second applicant. The founding affidavits do not say more of the applicants' locus standi; albeit an oblique reference to the fact that as residents on the municipality, they have a right to ensure that municipal property is not unlawfully disposed of to third parties. The Constitution of the second applicant (the Concerned Citizens Group – 'CCG') provides that its aims and objectives include taking up 'in any way, civic issues that relate to the KwaDukuza Municipality, the Illembe District Municipality and any other organ of government. The term, "civic issue" shall be given as wide an interpretation as is reasonably possible". CCG further seeks to monitor the decisions, regulations and bylaws of the municipality and to undertake campaigns in support or opposition to such decisions. It is also entitled to sue in its own name.

[8]

Initially, the respondents took issue with the locus standi of the applicants, with the first respondent contending that the applicants "are not the custodians of public rights" and that they have not established that they will suffer any harm if the development were to proceed. DRT suggested that the applicants were "business people and landlords, concerned about competition to their commercial interests". I considered the objections to the applicants' standing to be without merit. The opposition was withdrawn by counsel for the respondents at the time of the hearing, and I am of the view that the concession was properly made, particularly as courts should adopt a broad, rather than a narrow approach to standing, especially with

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regard to matters where the relief sought is on behalf of others, and where citizens legitimately exercise their right to interrogate the actions of government or organs of state against the standard of lawfulness. The applicants, in my view, were not "own interest" litigants as was the case in Giant Concerts CC v Rinaldo Investments (Pty) Ltd & others 2013 (3) BCLR 251 (CC). At para 34 Cameron J observed that:

'…To this observation one must add that the interests of justice under the Constitution may require courts to be hesitant to dispose of cases on standing alone where broader concerns of accountability and responsiveness may require investigation and determination of the merits. By corollary, there may be cases where the interests of justice or the public interest might compel a court to scrutinise action even if the applicant's standing is questionable. When the public interest cries out for relief, an applicant should not fail merely for acting in his or her own interest.'

[9]

In 2013 the municipality, which is the owner of the immovable property being the subject matter of this application, published an invitation to tender inviting preferred developers to 'partner the municipality' in the development of the project site, known as the golf course area. The municipality was of the view that this would contribute to the regeneration of its central business district. The proposal was for the development to include new civic offices and a mixed use development which could include retail/office developments, residential/entertainment and recreation and/or service industry development, at the cost of the developer. The successful developer would be required to enter into an agreement with the municipality to implement the project in accordance with the tender specifications.

[10]

The applicants considered the proposal to be a 'public private partnership' in the form of project financing – often referred to as BOT or 'build, operate and transfer' – where a private developer receives a concession from the public sector to finance, design, construct, and operate the facility. DRT was selected as a preferred bidder pursuant to a tender process. The applicants allege in their founding papers that the...