Ringhaven Community Residents Association v Nunkissor and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Nicholson AJ
• Judgment Date: 19 April 2023
• Citation: 2023 JDR 1214 (KZD)
• Hearing Date: 22 March 2023
• Docket Number: D1142/2022
• Court: KwaZulu-Natal Local Division, Durban

Nicholson AJ:

[1]

On 3 February 2022, the applicant brought an application consisting of Part A and Part B. In Part A, the applicant seeks interim relief pending the finalisation of Part B, wherein it seeks to review and set aside a decision by the third respondent to sell a property, which will be described hereinbelow, to the second respondent, together with ancillary relief connected therewith.

[2]

By the time this matter served before me, the review application in Part B was ripe for hearing. Despite the review application in Part B being ripe for hearing, the applicant chose to limit the relief sought before me only to Part A. Accordingly, this judgment shall only deal with the interim relief sought in Part A.

Factual Background:

[3]

The applicant is a voluntary association formed to represent the interests of residents and ratepayers of Foresthaven and Ringhaven. The genesis of this application appears to be on 25 January 2016 when the eThekwini Municipality, the third respondent herein, ('the municipality') transferred property described as Erf 286 Forest Haven, Registration Division FU, Province of KwaZulu-Natal, in extent 1863 square metres ('the property') to the second respondent. [1]

[4]

In light of the sale and transfer of the property, the applicant brings this application wherein it seeks an order that all development on the property ceases pending the review application.

[5]

A chronology that led to the bringing of this application can be extrapolated from the founding affidavit [2] as follows:

2023 JDR 1214 p3

Nicholson AJ

(a)

on 19 February 2018, one Keegan Govindsamy, a member of the applicant, contacted the municipality to seek assurance that the property would not be sold;

(b)

on 10 February 2020, a group of individuals arrived at the property and commenced felling trees;

(c)

on the same day, the applicant contacted the ward councillor, Lyndal Singh, to seek clarity on the issue who then sent a copy of the joint venture agreement between the first and second respondent;

(d)

in or about July 2020, the applicant sought legal advice and assistance from its attorney;

(e)

on 18 May 2021, a request for information in terms of the Promotion of Access to Information Act 2 of 2000 ('PAIA') was addressed to the municipality;

(f)

on 15 November 2021, construction on the property commenced;

(g)

on 25 November 2021, the conduct of the first respondent was reported to the KwaZulu-Natal Department of Environmental Affairs and to the Department of Water Affairs;

(h)

on 2 December 2021, a cease-and-desist letter was addressed to the first respondent by the applicant's attorney.

[6]

In setting out the reason for the review application, the applicant alleges: [3]

(a)

there is 'injustice inherent' in this matter because the municipality disposed of the property (which the applicant describes as a public 'playlot', being an active open space area), for as little as R34 200 to the second respondent, and the property was thereafter sold and transferred to the first respondent for an amount of R820 000;

(b)

the first respondent has commenced construction activities on the property 'thereby causing destruction and degradation to the property, and environmental resource which was of use to the Applicant and broader community';

2023 JDR 1214 p4

Nicholson AJ

(c)

the applicant and the community it represents were neither consulted nor allowed to adequately participate in the decision of the municipality to dispose of the property; and

(d)

the applicant's members' and community's constitutional rights were infringed; in particular their right to just administrative action, their right to an environment that is not harmful to their wellbeing and their right to have the environment protected.

[7]

In support of its locus standi, the applicant avers that its members, as ratepayers who live in the Ringhaven circle surrounding the property, have a direct interest in the matter, and bring this application not only on their behalf but also on behalf of the wider community. [4] Further, the applicant also brings this application in terms of s 32(1) of the National Environmental Management Act 107 of 1998 ('NEMA') and in terms of s 38(d) of the Constitution.

Reasons for Review:

[8]

The applicant states that the municipality was required to conduct a public participation process prior to taking the decision to sell the property which it failed to do. Further, in terms of s 28 of NEMA, the municipality was obliged to conduct an environmental impact assessment prior to selling the property to the first respondent, and the first respondent was required to carry out an environmental impact assessment prior to developing the property.

[9]

In the circumstances, and while the applicant mentions other grounds of review that I deal with hereinbelow, its main grounds of review in Part B, appears to be:

(a)

its right to procedural fairness, in particular, its right to consultation; and

(b)

its (or its members') environmental rights in terms of NEMA.

2023 JDR 1214 p5

Nicholson AJ

Requirements for Interim Relief:

[10]

In demonstrating that the applicant has a prima facie right, the applicant states that the community it represents has a clear right to just administrative action, a clear right to an environment that is not harmful to their health or wellbeing, and a clear right to be consulted on and participate in the decisions made by the municipality with regard to the property.

[11]

In advancing reasons that it holds a well-grounded apprehension of irreparable harm; the applicant avers that: the Ringhaven playlot will be destroyed and permanently transformed into a housing development (for low-income families); the natural vegetation on the site will be permanently destroyed; the playlot will more than likely be sold to further parties; and there will be no playlot for the children of the Ringhaven neighbourhood. It should be noted that, while the applicant describes the property as being a 'playlot', the first and second respondents dispute this description and state that it is merely vacant land.

[12]

The applicant further avers that should the development continue unabated; the community would be burdened with a range of adverse environmental impacts which include:

(a)

noise, dust and other nuisances during construction;

(b)

loss of social interaction within the community;

(c)

loss of natural open space areas and associated biodiversity;

(d)

traffic congestion as a result of the influx of additional residents into the small area; and

(e)

pressure on existing municipal services such as sewer water and storm water.

[13]

Regarding the requirement of irreparable harm, the applicant states that should the playlot be destroyed, it is unlikely that it will be restored to its former use because irreparable harm will ensue.

2023 JDR 1214 p6

Nicholson AJ

[14]

In considering the requirement of a balance of convenience, the applicant states that should the interim relief be granted, the first and second respondents may only suffer economic loss; however, if it is not granted, the applicant's right to just administrative action and an environment that is not harmful to one's wellbeing will be infringed. Accordingly, so the applicant reasons, in balancing the prejudices, the applicant will suffer more harm.

[15]

In demonstrating that the applicant has no other satisfactory remedy, it avers that it has exhausted all its available remedies including seeking assistance from the fifth respondent in accordance with the remedies available in terms of s 28 of NEMA.

[16]

In seeking condonation for the delay in launching the review proceedings, the applicant acknowledges that a review application in terms of the Promotion of Administration of Justice Act 3 of 2000 ('PAJA') must be brought within 180 days of the date on which all the internal remedies were exhausted.

[17]

In that regard, the applicant states that the decision to dispose of the property was made without notification or consultation with the surrounding community; however, in or about May 2021 an application in terms of PAIA was made to the municipality in order to obtain reasons for the transfer of the property. No response was forthcoming.

[18]

The applicant asserts that in considering condonation, the following must be considered:

(a)

the suspicious nature of the transfer of the property from the municipality to the second respondent, and thereafter from the second respondent to the first respondent;

(b)

the third respondent's non-compliance with the Local Government: Municipal Finance Management Act 56 of 2003 ('the MFMA') and PAJA;

(c)

the first and third respondent's non-compliance with NEMA;

2023 JDR 1214 p7

Nicholson AJ

(d)

the unlawful and unconstitutional conduct of the third respondent.

[19]

The applicant also states that regard must be given to the SIU investigation that is currently taking place regarding the irregularities pertaining to the gap housing programme by the municipality, pursuant to which programme the property was allegedly sold to the second respondent. The applicant states that given all of this, it will be in the interests of justice for the review proceedings to be heard.

[20]

The second and third respondents' opposition to the review application being granted is summarised hereunder:

(a)

The applicant has not made out a case for condonation for bringing the application outside of 180 days as required by s 7(1) of PAJA;

(b)

The applicant has not made out a case that NEMA applies;

(c)

The applicant has not made out any case that any irregularity existed in the transfer of the property.

[21]

The municipality's opposition to the relief sought by the applicant may be...