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Noordhoek Environmental Action Group v Wiley NO and Others (27009/2010) [2011] ZAWCHC 486 (13 December 2011)

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JEREMY ROBERT WILDER N.O …........................................................Second Respondent

(In their capacities as trustees for the time being of THE OLD CAPE VILLAGE TRUST)

DEPARTMENT OF ENVIRONMENTAL AFFAIRS

AND DEVELOPMENT PLANNING …........................................................Third Respondent

THE CITY OF CAPE TOWN …...............................................................................Fourth Respondent

DEPARTMENT OF TRANSPORT AND

PUBLIC WORKS …......................................................................................................Fifth Respondent

JUDGMENT DELIVERED ON 13 DECEMBER 2011

MANTAME. AJ

[1] This is an application for a declaratory relief as well as an order that First and Second Respondents continued refusal and / or failure to implement an order made by Davis J on 19 February 2008 constitutes contempt of court. Applicant further applies for an order for coercive compliance of the said order by Davis J by the First and Second Respondents and a further order for suspended payment of a fine or period of imprisonment to enforce the coercive order.

[2] Applicant was represented by Mr Van der Merwe. First and Second Respondents were represented by Mr Bridgman. Ms Mahomed appeared for Third and Fifth Respondent. There was no representation for the Fourth Respondent.

[3] Third and Fifth Respondents filed an explanatory affidavit and further elected not to oppose this application but rather to abide by the decision of this court.

[4] It is common cause that Applicant was granted an order in its favour by Davis J on 19^th February 2008. In terms of the order First and Second Respondents in their capacities as the trustees of the Trust were ordered to demolish and remove all permanent structures on Erf 453 Chapman's Peak, including all tar, asphalt surfacing, curbside construction and construction of the sign post currently situated on the said Erf.

[5] First and Second Respondents ("Trust") applied for leave to appeal against the aforementioned order on 21 April 2008. Davis J refused leave to appeal with costs. Immediately thereafter, the Trust petitioned the President of the Supreme Court of Appeal. The said application was dismissed with costs on 07 July 2008.

[6] An allegation was made in the First and Second Respondents answering papers that Second Respondent resigned as a member of the Trust since November 2010. Such was never denied by the Applicant as they had no proof of the same.

[7] Applicant alleges that the order of Davis, J has not been complied with to date. On the other hand, First and Second Respondents maintained that Davis, J's order has become academic as they subsequently obtained approval for the signage columns and the parking lot from the Provincial Government of the Western Cape ("the Premier"). The said approval was in the form of a correspondence from the Department of Transport and Public Works dated 29^th July 2008 that was addressed to the City of Cape Town and endorsed or copied to the other recipients which amongst others included First and Second Respondents.

[8] Fifth Respondent filed an explanatory affidavit regarding the letter of approval (Annexure M). Mr Malcolm Loch Watters deposed to the said affidavit and stated as follows:-

8.1. On receipt of the referral from the Premier's office, the request from First and Second Respondents was referred to the legal services, Mr Collins who in turn referred the matter to him;

8.2. Subsequently thereafter he met with Mr Alvin Cope, a registered engineer on contract with the Fifth Respondent and they both proceeded to conduct a site inspection on the 15^th July 2008;

8.3. Their authority on the inspection of Erf 453 extended only to the signage columns and the effect of the Road Ordinance 19 of 1976. On examination of the signage columns in the area, they found that even though the signage encroached on the building line which is 5 meters, such encroachment was acceptable. Mr Watters, as a result thereof proceeded to compile the letter dated 29 July 2008 (Annexure M).

8.4. The intention of the said letter was to comment on the signage columns and the competent authority on which he was alluding to in paragraph 3 of that letter, was the City of Cape Town and not the Department of Transport and Public works. According to him, his department made no objection to the approval of the provision of approximately 51 parking bays on Erf 453 Noordhoek. That could not have been or was NOT an approval for the parking bays.

[9] Fourth Respondent was not before court to explain their role and authority in as far as this application is concerned.

[10] Applicant contends that the signage columns and the construction of the parking bays occurred without any permission being granted whatsoever. The order of Davis J comprised a prohibitory and a mandatory element. It required that signage be removed and the parking bays be demolished to restore the structure to the condition it was before it was constructed. After the order by the Supreme Court of Appeal dismissing the appeal with costs, notices were put to indicate to the residents that the parking was closed.

[11] On 11 July 2008, the Trust issued a media statement about its intention to demolish the parking area. They proceeded to close the parking lot whilst Mr Wiley was negotiating with the contractors to attend to the practical demolition.

[12] Applicant's attorneys noted that processes were not put in place by First and Second Respondents to proceed with the removal of signage and demolition of the parking space. Accordingly they then forwarded a letter to the said Respondents attorneys reminding them about their clients' confirmation on 10 July 2008 to abide by and implement the terms of the High Court Order.

[13] On 30 July 2008 Applicants' attorneys confirmed the contents of their telephone conversation and amongst others that parties needed to meet to discuss the processes going forward.

[14] Consequently, on 31 July 2008, Applicants' attorney received a correspondence from the First and Second Respondents written by First Respondent to the effect that they had received a letter by post from the Provincial Government of the Western Cape approving the permanent paved parking area and permanent signage columns on Erf 453. They would then proceed to give effect to the provincial approval forthwith.

[15] In response to the said letter, Applicant's attorneys proceeded to advise First and Second Respondents with their letter dated 01 August 2008 of their client's intention to launch contempt and enforcement proceedings in the High Court as a result of their failure to implement the Court's Order. They then requested a copy of the said letter of approval.

[16] On 11 August 2008, Mr Wiley was subsequently advised by a letter from the Third Respondent that this demolition process might be a trigger to the environment in terms of the National Environmental Management Act 107 of 1998 ("NEMA"). Third Respondent required him to appoint independent environmental assessment practitioner to draw up a rehabilitation plan for the restoration of Erf 453, but nothing came out of it.

[17] Mr Bridgman, counsel for First and Second Respondents, submitted that Mr Wiley approached the Office of the Premier on occasion for this approval referred to above. Furthermore, the order by Davis J has been complied with as the approval was obtained. Mr Bridgman's conceded though, that the issue of parking might be somehow problematic as Fifth Respondent's approval focussed squarely on the signage columns. Therefore, once Fifth Respondent has granted an approval, it could not be withdrawn.

[18] Mr Bridgman argued further that, in terms of the Land Use Planning Ordinance 15 of 1985 (Cape) ("LUPO"), the City of Cape Town is a proper functionary or authority to address structural issues. Furthermore, he argued that in terms of Section 156 of the Constitution of the Republic of South Africa, 1996, the local authority can give permission for parking but cannot approve the structure. (See Swartland Municipality v Louw NO and Others¹, where the issue of co-operative governance was dealt with.)

[19] Mr Van der Merwe in turn submitted that Swartland (supra) dealt with provincial legislation and the mining rights were taken care of by the Department of Mineral and Energy. This case is not at all relevant to the case in casu as this is a planning issue.

[20] Consequently, on 21 January 2011, a 24G application of the National Environmental Management Act of 107 of 1998 was submitted by Kula Environment Consultants to the Third Respondent on behalf of the First and Second Respondent. An acknowledgment of receipt was received on the 24^th February 2011. No formal response was received so far. Applicant submitted that the Trust sprang into action and made this application in order to regularise its unlawful conduct only after contempt of court proceedings werefiled. This therefore according to Applicant boils down to indicate a mala fide disregard of the Court's Order on the part of the Trust.

[21] Mr Van der Merwe in turn submitted that the City of Cape Town has certain decision-making functions; they do not have exclusive authority in as far as the structural issues are concerned.

[22] It is trite law that once an order of court has been made by a court of competent jurisdiction it has to be complied with. No one can contest the contents of such judgment up until same has been appealed against or reviewed by a competent court of law. For instance in Bezuidenhout v Patensie Sitrus Beherend BPK², the court had to deal with a question on whether it had the competence to make an order that would nullify the effect of an earlier order made by another Judge of the High Court in respect of the same issue, between the parties. Froneman J remarked as follows: "/ thought it obvious that I do not possess that competence. An order of a court of law stands until set aside by a court of competent jurisdiction. Until that is done the court order must be obeyed even if it may be wrong (See Culverwell v Beira 1992 (4) SA 490 (W) at 494 A-C).

[23] In my view, an order of court cannot be evaded and or circumvented by First and Second Respondents by simply applying to the Premier in order to cure the defect that was already pointed out in Davis J's judgment. The said judgment still stands. There is no rule in our law that allows a court (otherthan a competent Appeal Court or Court of review) to disregard or to ignore or to set aside the order of the same or another court, in a matter that comes before it in respect of a claim for the same relief between the same parties. In my view, it is not permissible for the First and Second Respondents to simply announce their approval that was received from the Premier without regard being had to the order of Davis J. Such conduct borders on contempt of court or/ order of Davis J. It renders the order nugatory. No court, in my view, would allow itself to be reduced to a toothless bulldog.

[24] In Uncedo Taxi Service Association v Maninjwa,³ it was held that in order for an Applicant in contempt proceedings to succeed he or she must prove the elements of contempt beyond reasonable doubt. There is no doubt in casu that the Applicant has proved non- compliance with the court order of the First and Second Respondent's beyond reasonable doubt.

[25] By the same token, First and Second Respondents, complain about the correctness of the order that was made by Davis J. Whether the order was made rightly or wrongly, it is bound to be obeyed. (See Bezuidenhout and Culverwell supra). Besides their failed attempts to appeal this judgment, First and Second Respondents have not advised this court what else they have done in order to remove this cause for complaint.

[26] It appears that First and Second Respondents seek to criticise the factual finding of Davis J, hence Applicants sought an order striking out certain averments as contained in some portions of First and Second Respondents' affidavit. I agree with the Applicant that all these issues that were raised by the First and Second Respondents seek to disrespect and re­visit the issues that have already been dealt with by Davis J. In the result, it would not be prudent to make a finding on the said issues.

[27] In the main, Applicant seeks a declaratory relief to the effect that no consent by the Premier, as contemplated in condition 3 of the conditions of approval of subdivision and rezoning of Erf 270, which was granted in 1993 in terms of Section 42 of LUPO has been granted subsequent to the order of Davis J; and whether First and Second Respondent are in contempt of the said court order.

[28] I would imagine that the main purpose of the First and Second Respondent to join the Fifth Respondent was for the Fifth Respondent to explain their role in as far as this APPROVAL by the Premier is concerned. On reading the Annexure M and further the explanatory affidavit, it is clear that no Department of the Premier or Fifth Respondent for that matter have granted the said approval on behalf of the Premier.

[29] In turn, Mr Bridgman argued that this case be referred to oral evidence in order to evaluate certain factual issues including a major dispute of fact on whether the Department of Transport and Public Works (Fifth Respondent) had the delegated authority from the Premier to grant ex post facto permission, and in the second place if it did in fact, grant ex post facto

permission (Annexure M). In my analysis, the said annexure M was addressed to the City of Cape Town and not to the First and Second Respondents. It could be gleaned from the same document though that it was copied to First and Second Respondents and reference has been made to the letter dated 25 April 2008 from Old Cape Village Trust to the Premier of the Western Cape, further to the Judgment of Davis J of the 19 February 2008, and also to the letter dated 21 November 2003 (the latter was not included on record). On reading the said letter (Annexure M), I am not persuaded that it is an approval as paragraphs 3 is very much clear that "Accordingly this branch offers no objection to the approval of the provision of approximately 51 parking bays on Erf 453, Noordhoek". Paragraph 4 was further explained as NOT constituting an approval. Mr Watters's explanation was that on examination of the signage columns in the area, they found that even though the signage encroached on building line which is 5 meters, such encroachment was acceptable. Mr Watters, as a result thereof proceeded to write the letter dated 29 July 2008 (Annexure M).

[30] If at all that was the letter of approval, I would have expected that since the Old Cape Village Trust wrote to the Premier, if the Premier was now consenting and giving approval to their construction process, such approval should have been directed to the said Trust and not be directed to the City of Cape Town. In all that could not be said to be the letter of approval.

[31] In my view, First and Second Respondents are indeed in contempt of court order by Davis J. I will not deal with some issues that do not relate todeclaratory and contempt proceedings as they seek to reopen the merits of this case. I have in any event dealt with the legal principle as such in paragraph 22 above. I believe this is a matter that is capable of being decided on paper. Postponing and or referring these proceedings to oral evidence would amount to an abuse of process as this will drag the matter unnecessarily.

[32] Furthermore, Mr Bridgman argued that in as far as Fourth Respondent is concerned, they have neglected their duties in terms of LUPO. In this case, clarity resided on Fourth Respondent and they failed to take that action. For that reason alone, Fourth Respondent should be ordered to pay costs. See & Grady v Fischer & Others⁴, where it was held that before any structure is built, permission of Administrator (Premier is the successor in title) should be sought. I do not agree with that assertion.

[33] In all circumstances, I make the following order:

33.1. Declaring that there was no consent by the Premier as contemplated in condition 3 of the conditions of approval of subdivision and rezoning of Erf 270 granted in terms of Section 42 of the Land Use Planning Ordinance number 15 of 1985 ("LUPO") by the Provincial Authority dated 27 May 1993 under reference AFR1/19/4/1-D10;

33.2. Declaring that the continued refusal, failure and or/ neglect of First and Second Respondent to implement the Court Order of Davis, J of 19 February 2008 constitute a contempt of court;

33.3. First and Second Respondents are ordered to give effect to the Court Order of Davis, J dated 19 February 2008 within 90 days of the granting of this order and a fine of R30 000.00 wholly suspended on condition that First and Second Respondents complied with this order on or before the stipulated days.

33.4. First and Second Respondents are ordered to pay costs on an attorney and client scale.

MANTAME AJ

1' 2010(5) SA314

2 2001 (2) SA 224 at 229 B-C

3 1998 (3) SA 417(E)

4 2007 (2) SA 380 AT 386H - 387F