Rosebank Mall (Pty) Ltd and Another v Cradock Heights (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Goldstein J, Joffe J and Cilliers AJ
• Judgment Date: 05 November 2001
• Citation: 2004 (2) SA 353 (W)
• Docket Number: A5002/2003
• Hearing Date: 23 September 2003
• Counsel: Z F Joubert SC (with him G J Nel) for the appellants. P M Kennedy SC (with him G W Amm) for the respondent.
• Court: Witwatersrand Local Division

Cilliers AJ: C

[1] This is an appeal against the whole of the judgment of Coetzee J with the leave of the learned Judge. The respondent launched an application against the appellants by notice of motion dated 16 November 2001, a copy of which is not before us [1] . It was apparently subsequently amended and in its amended form is dated 3 September 2002. On 20 February 2002 the application was referred for the hearing of oral D evidence. On 21 October 2002 Coetzee J made an order in terms of prayers 1.1, 1.2, 1.3, 2, 3, 4 and 5 of the respondent's amended notice of motion and the appellants were also ordered to pay the costs of the proceedings jointly and severally. E

[2] Prayers 1 to 5 of the amended notice of motion read as follows:

'1.

The factual disputes which have been referred for the hearing of oral evidence are determined in favour of the applicant as follows: F

1.1

It is declared that the 1995 agreement concluded, inter alia, between the applicant and the respondents, a copy of which appears as annexure LR3 to the founding affidavit, comprising the agreement and the redevelopment plan attached thereto (the 1995 agreement - appearing at pp 28 - 45 of the pleadings bundle) is enforceable. G

1.2

It is declared that the applicant has not breached the 1995 agreement.

1.3

It is declared that the respondents have breached and are in breach of the 1995 agreement in particular in:

1.3.1

constructing or causing or permitting the construction of the new circular steel and glass structure providing access to and H egress from the Rosebank Mall Shopping Centre, which structure has been erected on portion 2 of erf 226, in what was formerly Cradock Avenue;

1.3.2

constructing or causing or permitting the construction of the enclosed shop area currently leased to the owners of the Clockwise Restaurant; and I

Cilliers AJ

1.3.3

failing to ensure that the areas marked as pedestrian areas A on the redevelopment plan attached to the 1995 agreement are used exclusively for purposes of pedestrian traffic and the right of way of the general public.

1.4

It is declared that the applicant has valid and enforceable rights in respect of portion RE46. B

2.

The respondents are ordered jointly and severally to demolish and remove and/or cause to be demolished and removed the following works or structures that are declared not to conform to the redevelopment plan attached to the 1995 agreement:

2.1

the steel and glass structure forming the new entrance at the north east corner of the Rosebank Mall Shopping Centre; and C

2.2

the exterior walls and windows of the area now occupied by the Clockwise Restaurant as well as the canopy on the exterior of those premises, in such a manner as to ensure that the area marked on the redevelopment plan attached to the 1995 agreement under the terrace of Sophia's Restaurant is an unenclosed space permitting pedestrian thoroughfare. D

3.

In the event that the respondents fail to comply with the order for demolition and removal as set out in para 2 above within 20 Court days of the date of this order, the Sheriff or his deputy shall cause the said demolition and removal to be effected and to recover the costs of such demolition and removal from the respondents jointly and severally. E

4.

The respondents are interdicted and restrained from undertaking (or causing or permitting to be undertaken) any other works, construction or erection of any structures on portions 1 and 2 of erf 226 situate in Cradock Avenue, Rosebank that do not conform to the redevelopment plan attached to the 1995 agreement. F

5.

The respondents are interdicted and restrained from using or permitting any areas of portions 1 and 2 of erf 226 which are depicted as pedestrian areas in the redevelopment plan attached to the 1995 agreement for any purposes other than the unimpeded pedestrian thoroughfare and right of way of the general public, provided that: G

5.1

this order shall not preclude the continued operation of the craft market;

5.2

and to the extent that the craft market may restrict public thoroughfare, the applicant reserves such rights as it may have in due course to seek appropriate relief.' H

[3] The application was based on what is termed a 'co-operation agreement' dated 28 July 1995 and entered into between the three parties in this matter and three companies, Downtown Development Corporation (Pty) Ltd (Downtown), J H Isaacs Group (Transvaal) Ltd (J H Isaacs) and Integrated Property Resources Ltd (Intaprop). In the I co-operation agreement Downtown is referred to as such and is said to include J H Isaacs; the first and second appellants and the respondent are referred to respectively as Rosebank Mall, Cenprop and Cradock Heights; and Intaprop is referred to as such. J

Cilliers AJ

[4] The co-operation agreement dealt with a proposed development A scheme involving Cradock Avenue, Rosebank, bounded by Baker Street in the south and Tyrwhitt Avenue in the north. The scheme involved the closure of Cradock Avenue from a point 30 metres to the north of its intersection with Baker Street to the northern boundary of the Rosebank Mall, a shopping centre bordering on Cradock Avenue, the disposal of portion of Cradock Avenue (the road portion) to the second appellant, B the development on the road portion of 1250 square metres of retail space, the establishment of a pedestrian thoroughfare on part of the road portion for the benefit of the public, and the accommodating of informal traders in a planned environment, all of which was shown on the plan (the plan) attached to the co-operation agreement (clause 1.2.2.4). C

[5] The Rosebank Mall is owned by the first appellant, all the shares of which are held by the second appellant. The distinction between the appellants is not material for the purposes of this judgment, and they are, for convenience, often referred to simply as 'the appellants' without drawing a distinction between them. D

[6] The Rosebank Mall is situated on a rectangular piece of land, bordering on Cradock Avenue, save for the north-eastern corner of the rectangle, being the remaining extent of erf 46 Rosebank (RE46). North of this land lies a piece of land, described in the papers as 'Lot 45' owned by the respondent, the eastern side of which borders on the western side of Cradock Avenue. Lot 45 is bordered in E the north by Tyrwhitt Avenue. The co-operation agreement provided for a series of shops to be built on Cradock Avenue to the south of the entrance to the Rosebank Mall. The first four of these shops, south of the entrance, were to extend five metres into Cradock Avenue. South of these shops provision was made for a further ten shops extending nine F metres into Cradock Avenue. To the south of the 14 shops facilities were to be erected for hawkers, and to the east of Cradock Avenue and bordering on it, kiosks were to be erected for hawkers. The plan provided for a pedestrian area on Cradock Avenue of 1 626 square metres.

[7] When the scheme came to be implemented, the plan was deviated from in a number of material respects. The 14 shops initially G envisaged were abandoned and so too were the hawkers' facilities to the east of Cradock Avenue. Instead, and straddling virtually all of Cradock Avenue from a point in the vicinity of where the northern wall of the sixth shop was intended to be, to a point near the intended southern wall of the 14th shop, the appellants erected a craft market. H These changes were not objected to by any of the parties to the co-operation agreement. On the contrary, the appellants, the respondent and various others all co-operated in submitting a revised plan, referred to as the 'Kate Otten plan', for approval to the local authority. Its principle feature was the relocation of the I informal traders to the craft market referred to above. The most significant consequences of such relocation were that it was no longer viable for the appellants to expand prime retail facilities into the road portion and the appellants' abandonment of that objective. A further change, which triggered the application of 16 November 2001, J

Cilliers AJ

involved the construction at the entrance to the Rosebank Mall, of a closed semi-circular structure which was referred to in the A evidence as a bubble. It extended 11,9 m into Cradock Avenue, leaving 5,4 m between the most eastern portion of the bubble and the former eastern kerb of Cradock Avenue. Furthermore, and to the north of the bubble, the appellants enclosed an area which housed a restaurant known B as Clockwise and allowed it to extend further into Cradock Avenue in an enclosure, the canvas walls of which were removable, covered by a canopy. The restaurant and its canopy extended 9,5 m into Cradock Avenue. The respondent's case was that the erection of the bubble and the enclosure of the area occupied by the Clockwise Restaurant constituted breaches of the co-operation agreement. Coetzee J found C that this was so, and the effect of his order was to compel the appellants to demolish the offending structures and to interdict them from building such structures in the future. It is not contested, and correctly so, that the structures concerned are not allowed for on the plan.

[8] The following clauses of the co-operation agreement are germane to the issues raised in this appeal: D

'1.

Interpretation

In this agreement:

. . . E

1.2

unless inconsistent with or otherwise indicated by the context:

. . . F

1.2.2

the following expressions shall bear the meanings assigned to them below and cognate expressions shall bear corresponding meanings:

. . .

1.2.2.4

''scheme'' means the proposed development scheme known as the Cradock Avenue Redevelopment involving the closure...