Nad Property Income Fund (Pty) Ltd and Another v Tivane and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BA Mashile J
• Judgment Date: 25 July 2022
• Court: Mpumalanga Division, Mbombela
• Hearing Date: 25 July 2022
• Docket Number: 2692/2022

Mashile J:

INTRODUCTION:

[1]

This application has been brought in two parts, A and B. The Applicants seek relief that pending finalisation of Part B of the notice of motion, the First and Second Respondents ("the Respondents"), on urgent basis, be prohibited from proceeding with construction of a petrol filling station and ancillary activities on property described as Stand No: 295, Tsakane, Acornhoek, Bushbuckridge Local Municipality ("the subject property") and conducting business of a petrol filling station and all subsidiary endeavors on the subject property. Additionally, that costs of Part A be borne by the Respondents, jointly and severally, the one paying the other to be absolved.

[2]

In terms of the notice of motion, the Respondents were directed to deliver their opposing affidavit at 12 noon on or before 6 July 2022. Although it is trite that the time lines laid down in the notice of motion are not to be ignored without any justifiable reasons, the Respondents failed to adhere to them. They joined the virtual proceedings 20 minutes late. Other than advising them that the court took a grim view of their acts, no negative consequence flowed therefrom and the matter continued notwithstanding the delay.

[3]

I feel constrained to mention that the Applicants' notice of motion was supported by a 45-paged founding affidavit. The case against the Respondents has manifest grave

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business repercussions against them yet and uncharacteristically in such circumstances, the Respondents responded with a six-page document docketed, answering affidavit. Woefully, the answering affidavit is conspicuously insufficient to address all the allegations made in the founding affidavit. In short and in view of the many averments which went unchallenged, it is fitting to say that in large part, the matter is unopposed.

FACTUAL MATRIX:

[4]

The First Applicant owns Erf 930 Greenvalley Ext 1 Township, Acornhoek, Bushbuckridge, Mpumalanga for which it holds a site license issued in terms of the Petroleum Products Act ("PPA"). The Second Applicant conducts a Puma fuel filling station business on the First Applicant's property in terms of a retail licence issued in terms of the PPA. The First Respondent is the beneficial owner and ostensibly the holder of a permission to occupy ("a PTO") stand 295 Tsakane, Acornhoek, Bushbuckridge, Mpumalanga. The Applicants allege that the Respondents are in the process of unlawfully constructing a petrol filling station on the subject property.

[5]

The Third to Sixth Respondents are organs of state with direct and substantial interest in the application especially Part B whose objective is to review and set aside the administrative actions taken by such organs of state in terms of:

5.1

The National Environmental Management Act, 107 of 1998 ("NEMA");

5.2

The PPA;

5.3

The National Building Regulations and Building Standards Act, 103 of 1977 ("the Building Standards Act"); and

5.4

The Spatial Planning and Land Use Management Act, 16 of 2013 ("SPLUMA").

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[6]

The Applicants allege that they became aware that the Respondents were in the process of constructing a fuel filling station on the subject property during the last week of May 2022. The Applicants further mention that while they may have been aware of the construction prior to the period referred to aforesaid, they were oblivious of the nature and purpose of the structure. It was not until they noticed the construction of a canopy and ground works to establish the forecourt that it dawned to them that a competitive fuel filling station was in the process of being built on the subject property, which is situated approximately 2.4 Kilometres South of the Applicants' property.

[7]

It is alleged further that there were no notices displayed at the subject property to notify any member of the public, including the Applicants, that a fuel filling station was in the process of being developed. As such, there has been a complete failure of crucial public participation prescribed in each and every of the aforesaid statutory instruments. The failure also extends to the non-observance of Section 33 of the Constitution of the Republic of South Africa and Section 3 of the Promotion of Administrative Justice Act, 3 of 2000 ("PAJA").

[8]

When it emerged that it was a fuel filling station that was being constructed, the Applicants caused investigations to be conducted at the offices of the Third Respondent ("the Municipality"). These investigations uncovered that:

8.1

A "consent use permit for a filling station" was issued subject to a site development plan being submitted within twelve months, i.e. before the 20th of June 2018, failing which the approval would lapsed;

8.2

An environmental authorisation had to be procured;

8.3

Consent had to be obtained from the South African National Roads Agency Limited ("SANRAL") for access to the subject property; and

8.4

A business license had to be applied for.

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[9]

The Applicants claim that their investigations have exposed that none of the aforegoing conditions were satisfied. As such and insofar as land use is concerned, the Respondents do not have the necessary authorisation to conduct their current activities on the subject property. As though that was not enough, the unlawful nature of the activities of the Respondents are compromised by the fact that they have commenced with construction activities in the absence of an approved site development plan and building plans required in terms of Section 4(1) of the Building Standards Act.

[10]

The Applicants also allege that the subject property is still zoned "Agricultural" and any consent that was seemingly obtained is irregular in terms of the applicable town planning scheme. To this end, the Applicants have annexed to the founding affidavit Extracts of the Town Planning Scheme to the Founding Affidavit. On 10 June 2022 and following becoming aware of the unlawful nature of the construction on the subject property and investigations as aforesaid, the Applicants caused a letter of demand to be sent to the Respondents. An undertaking to cease all illegal activities on the subject property within 48 hours was demanded.

[11]

The Applicants also...