Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

and

JUDGMENT 
delivered on 12 February 2009

BINNS-WARDAJ:

[3] The points taken by the respondents in their provisional answering affidavit are the following:
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3.1.	Absence of urgency

3.3.	That in any event the applicant's allegations suggesting the possible existence of grounds to impugn the legality of the municipality's approval of the building plans were based on 'pure speculation' and should not be permitted to stand in the way 	of the respondents right to proceed in accordance with the permission granted in terms of the National Building Regulations 	and Building Standards Act 103 of 1977 ('the Building Act').
3.4	That the balance of convenience weighs against the applicant. The Respondents ask for the application to be dismissed with costs.

[4] I am persuaded that the application satisfies the requirements of urgency so as to entitle the applicant to a hearing out of the ordinary course. It is obvious that if the application for interim relief were to be heard in the ordinary course any order granted in terms of the notice of motion would by that stage be of no practical value. The evidence is that the respondents, as they are entitled to do, are proceeding apace with construction work, ostensibly (although this is in dispute) in accordance with the building plan approval that they have obtained. Such delay as there was in launching the application is explained on the basis of the intervention of the builders' holidays and the endeavours of the applicant to persuade the local authority to intervene, thereby avoiding the necessity for litigation.

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[8] Despite its acknowledged importance to the result of the application for interim interdictal relief I do not consider it necessary, or indeed appropriate, in these proceedings to deal at any length with my assessment of the applicant's prospects of success in the contemplated review application save on one issue.

[9] Suffice it however to say that I would not be disposed, in the absence of very weighty and convincing indications of the unlawfulness of the impugned decision, alternatively of the irremediable prejudice likely to be suffered by the applicant if interim relief were to be refused, to grant interim prohibitory relief merely because the applicant had directed a request for, and was awaiting, reasons in terms of s 5 of PAJA.

[15] The only consideration advanced by the applicant in respect of her prospects of success on review that requires more careful consideration is the issue of safety.

[16] Section 7(1)(b)(ii)(bb) of the Building Act provides that a local authority may not approve a building plan application where it 'is satisfied that the building to which the application in question relates will probably or in fact be dangerous to life or property.

[17] The local authority has in the past expressly acknowledged that building on the steep dune face on which the construction by the respondents is being undertaken can be problematic. A letter was produced by the acting municipal manger to an owner of property in Muller Street in May 2006 in which it was stated, inter alia:

'Die grootste problem wat die Munisipaliteit ondervind met die goedkeuring van
bouplanne in hierdie area, is die kwessie van veiligheid. Daar is sonder enige twyfel nou vasgestel dat die stabiliteit van hierdie duin van so 'n aard is dat daar uiters streng vereistes opgele sal moet word alvorens 'n Bouplan goedgekeur kan word. Dit wil baie duidelik blyk dat hierdie erwe so onstabiel is dat slegs 'n klein gedeelte van
die erwe aangewend kan word vir die aanbou van 'n eiendom.'

Both the applicant's and the respondents' properties are situate along Muller Street.

[19] It is therefore understandable that development of the respondents' property was preceded by a geotechnical investigation and slope stability study by Siyakhula Lab CC (Geotechnical and Geological Services). My impression is that its content in general confirms the observations and concerns in Dr van Rooyen's report. Siyakhula's report highlights what is described therein as 'a few important issues on the stability of the slope':
	The stability of the slope is critical for the safety of the proposed structures, existing structures below the slope, environmental and third party liability.
	Apart from some localised historical slips in the loose upper sands, the dune has been macro-stable.
	Since the dune slope is steeper than 0, the loose upper horizon is considered unstable at all times and is only enjoying marginal stability due to the anchoring effect of the dense vegetation cover.
	The slope is considered to being "on the point of failure" (i.e. unsafe) when cleared of vegetation during construction.
	The macro slope is considered "marginally safe" when a suitably designed structure is in place (ie: after construction
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	The future stability of the slope is very dependent on storm water management and general erosion control.
	The study is based on the existing geometry of the slope. Any changes to this geometry during construction will have an effect on the stability.

[20] The applicant has commissioned an assessment by a civil engineer of the safety considerations pertaining to the structure being erected by the respondents. Mr Jean du Plessis has a special interest in geotechnical engineering and is an external examiner for geotechnical engineering in the University of Stellenbosch department of civil engineering. Mr du Plessis did not visit the site for the purpose of preparing his affidavit in this application, but he had inspected the respondents' property in connection with an earlier application in proceedings between the parties in case no. 12557/08.

[22] Mr du Plessis describes internal inconsistencies between the lower ground floor layout design that formed part of the application for building plan approval approved in November 2008 (annexure JP 3.1 to his affidavit), and the accompanying 'Detail Section A' drawing (annexure JP 3.2 to his affidavit) which depicts how the proposed building is to be anchored into the dune and stabilised. (I refer to paragraphs 7.1 and 7.2 of Du Plessis's affidavit.) He also points out that what has been built corresponds with neither set of plans. In this respect I consider it significant that at the time of the approval of the November plans the local authority was aware that construction had already commenced, ostensibly in accordance with the May plans. It is implicit in Mr du Plessis's evidence (I refer especially to paragraph 12.1 of his affidavit) that any proper consideration and approval of the November plans had to take into consideration what had already been built if, as appears to have been the case, the second set of plans was directed at regularising the construction of a building already under construction and in a state of partial completion. Mr Du Plessis also points to inconsistencies between what is depicted on the aforementioned drawings and the descriptions given in a motivation report submitted to the local authority by Mr Rynard Pienaar of the Vox Group as part of the November building plan submission, which report was described itself as 'a construction explanation'. An important point made by Mr du Plessis in this connection is that the drawings considered in connection with the building plan application do not on their face contain the degree of particularity which could satisfy the local authority that a safe and stable structure would result from construction in accordance with their tenor.

[23] Mr du Plessis goes on to advance the opinion that the plans do not satisfy safety requirements and do not comply with the requirements of the Building Act. I do not think however that it is appropriate for me to go into that at this stage of the matter before the respondents have had an opportunity to deal fully with the founding papers.

[25] The aforegoing considerations suggest to me quite strongly that, on an assessment of the papers as they currently stand, the applicant would appear to enjoy reasonable prospects of success on review. This impression might, of course, be altered once the court has the benefit of insight into a full and properly considered answer from the respondent.

[27] The following order is made:

1.	An order is granted permitting the disposal of this application as a matter of urgency, and dispensing, insofar as may be 	necessary, in terms of uniform rule 6(12) with the ordinarily applicable forms and rules.

2.1 second and third respondents should not be interdicted from carrying out any building work on erf 196, Tergniet, Mossel Bay, pending the final determination of judicial review proceedings to be instituted by the applicant within the time period afforded in terms of s 7 of the Promotion of Administrative Justice Act 3 of 2000 for the setting aside of the approval of the building plans pertaining to the development; and

2.2 why an order should not be made directing that the costs of this application should not be costs in the intended judicial review application, subject to the qualification that the second and third respondents costs shall be paid by the applicant in the event that the review application is not launched, or having been launched, is not diligently prosecuted to a hearing.
3.	In the event of the respondents desiring to oppose the confirmation of the rule on the abovementioned return date, they shall deliver their amplified answering papers, if any, by Thursday, 26 February 2009.
4.	The applicant is afforded until Thursday, 5 March 2009 to deliver her reply, if any, to any answering papers delivered by the respondents.
5.	The applicant's attorneys of record are directed to ensure, through the Registrar, that the judge presiding in the fast track of 	the Third Division on 6 March 2009 is provided with the papers in the application by no later than 09h30 on Monday, 2 March 	2009, without any assurance however that the matter will be disposed of in that court as an opposed application on the return date.
6.	In the event that the matter cannot be disposed of in the Third Division on 6 March 2009, the parlies are given leave, insofar as such might be required, to apply to the Judge President in chambers for an early allocation date of greater priority than that afforded on the semi-urgent roll.
7.	
8.	
A.G. BINNS-WARD
Acting Judge of the High Court