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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES: MICHAEL RICHARD JAMES FULLER

AND

KENTON ECO ESTATE LTD + 5 OTHERS

• Case number: 1861/07

• High Court: EASTERN CAPE DIVISION

DATE HEARD: 11/10/07

DATE DELIVERED: 15/10/07

JUDGE(S): Jones J,

LEGAL REPRESENTATIVES –

Appearances:

• for the Applicant(s): ADV: G.G. Goosen

• for the Respondent (s): ADV: Grobler + Mr Putter

ADV: Smuts + Mr Bloem

Instructing attorneys:

• Appellant(s): WHEELDON RUSHMERE & COLE

• Respondent(s): MESSRS NETTLETONS

NN DULLABH & CO

CASE INFORMATION -

• Nature of proceedings : INTERDICT

Not reportable

In the High Court of South Africa

(Eastern Cape Division) Case No 1861/2007

Delivered:

In the matter between

MICHAEL RICHARD JAMES FULLER Applicant

and

KENTON ECO ESTATE LIMITED 1^st Respondent

BLUE HORIZON DEVELOPMENTS (PTY) LTD 2^nd Respondent

THE MEMBER OF THE EXECUTIVE COUNCIL

FOR ECONOMIC AFFAIRS, ENVIRONMENT

AND TOURISMS 3^rd Respondent

CHIEF DIRECTORATE: ENVIRONMENTAL

AFFAIRS IN THE DEPARTMENT OF ECONOMIC

AFFAIRS AND TOURISM, EASTERN CAPE 4^th Respondent

DEPUTY DIRECTOR: WESTERN REGION IN

THE DEPARTMENT OF ECONOMIC AFFAIRS,

ENVIRONMENT AND TOURISM, EASTERN CAPE 5^th Respondent

NDLAMBE MUNICIPALITY 6^th Respondent

SUMMARY: Review of an administrative decision authorizing an urban development – urgent interim interdict sought stopping work on the development pending review – requirements for an urgent interim interdict not proved.

JUDGMENT

JONES J:

[1] The 1^st respondent is the developer of an urban development on the eastern side of the Kariega River at Kenton-on-Sea called Kenton Eco Estate. The 2^nd respondent is 1^st respondent’s holding company. The proposed development is situated on agricultural land within the local authority area of the 6^th respondent. The 6^th respondent granted an application for rezoning the property to permit its development for residential purposes. The 6^th respondent has not participated in these proceedings as the zoning application is not relevant.

[2] What is relevant is a decision on 12 October 2007 to grant an application giving the 1^st respondent authorization for the development in terms of the Environmental Conservation Act No 73 of 1989. This decision was taken in the offices of the 4^th and 5^th respondents, and it was implemented by their officials. The authorization is contained in a document called a record of decision, which has been abbreviated and referred to in these papers as ‘the RoD’. There were various objections on ecological grounds to the grant of authorization, and these were taken further in an appeal to the 3^rd respondent in terms of the Act. The applicant had been prominent in raising the objections and was a member of the Kariega Trust which had also objected. He was one of the objectors who noted the appeal. On 12 April 2007 the 3^rd respondent dismissed the appeal but amended the RoD to include certain conditions which the 1^st respondent was obliged to fulfil to the satisfaction of the 4^th and 5^th respondents. These conditions required the 1^st respondent, inter alia, to provide the 4^th and 5^th respondents with ‘irrefutable proof’ that the capacity of the desalination plant at Bushmans River was adequate to provide for the future water demands of the Kenton Eco Estate, and which stipulated that no construction work was to commence on the site until this issue had been addressed to the satisfaction of the 4^th and 5^th respondents.

[3] On 7 August 2007 the 1^st respondent commenced work on the site of the development. As far as the applicant was concerned, it did so although the condition relating to the provision of water and the desalination plant had not yet been fulfilled. The applicant accordingly launched this application. The notice of motion is in two parts. First, Part A seeks an urgent interim interdict pending the outcome of a review application. The interdict is to prevent the 1^st respondent from continuing with construction work on the site and is based primarily on the allegation that the 1^st respondent has unlawfully and without authority commenced development work on the site before fulfilment of a mandatory condition. Part B is not brought as a matter of urgency. It is ‘an application made in accordance with the normal rules of procedure’ to review and set aside the RoD as amended. Only Part A is presently before me.

[4] In order to succeed in an application for an urgent interdict pending the outcome of legal proceedings, the applicant must, of course, make out a proper case of urgency, and he must satisfy certain well-known requirements which have been formulated in many authorities. For example, in L F Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) 267B-F Corbett J (as he then was) said:

‘Briefly these requisites are that the applicant for such temporary relief must show

1. that the right which is the subject-matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;

2. that, if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

3. that the balance of convenience favours the granting of interim relief; and

4. that the applicant has no other satisfactory remedy.

(See Gool v Minister of Justice and Another, 1955 (2) SA 682 (C) at pp. 687 - 8; Pietermaritzburg City Council v Local Road Transportation Board, 1959 (2) SA 758 (N) at p. 772). Where the applicant cannot show a clear right, and more particularly where there are disputes of fact, the Court's approach in determining whether the applicant's right is prima facie established, though open to some doubt, is to take the facts as set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial of the main action (see Gool's case, supra)’.

The respondent’s case in opposition to the interim relief is not, however, to be ignored. If a prima facie case is established by the applicant on the basis contemplated above, ‘the facts set up in contradiction by the respondent should then be considered and, if serious doubt is thrown upon the case of the applicant, he cannot succeed’ (per Smalberger JA in Simon NO v Air Operations of Europe AB and others [1998] ZASCA 79; 1999 (1) SA 217 (SCA) at 228G-H, quoting Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 and Gool’s case supra. See also Spur Steak Ranches Ltd and others v Saddles Steak Ranch, Claremont and another 1996 (3) SA 706 (C) at 714B-H and Ladychin Investments (Pty) Ltd v SA National Roads Agency Ltd and others 2001 (3) SA 344 (N) 353D.

[5] I am not satisfied that the applicant has made out a proper case of urgency. I am also not satisfied he has discharged the onus of proving that he had no other remedy but an interim interdict, or that the balance of convenience is in his favour.

[6] Within the factual context of this application, these three considerations overlap in some respects. The applicant makes common ground of them in his contention that the 1^st respondent cannot be allowed to continue with construction work on the site to the detriment of the environmental rights which the applicant seeks to protect in circumstances where the work is unauthorized and hence unlawful and might even amount to a criminal contravention of the Act. To meet this contention the 1^st and 2^nd respondents have submitted to a final interdict restraining them from continuing with the work until the 4^th respondent has formally indicated its satisfaction that the condition in the RoD relating to the provision of water and the desalination plant at Bushman’s River has been fulfilled. They have done so without conceding that the work is in fact unlawful or that the 4^th and 5^th respondents’ consent to commence the work was indeed not given. The effect of the final interdict is (a) to eliminate the issue of urgency; (b) to remove any question of unauthorized or unlawful or criminal conduct from the equation; and (c) to demonstrate that there always has been a remedy alternative to the issue of an urgent interim interdict pending a review – namely a final interdict prohibiting the performance of unauthorized work, which is more direct and effective than the proposed interim interdict.

[7] The only basis of urgency has been the unexpected commencement of work in apparent defiance of the conditions of the amended RoD relating to the provision of water. The unlawful work ceased with the agreement of 28 September 2007 to stop work, which was reached when the application was postponed on that date. The position is now to be regulated by the final interdict. There is no longer either a basis or a need for an interim interdict. Mr Goosen argues that the final interdict does not give sufficient protection because the work can recommence as soon as the 4^th respondent gives the 1^st respondent permission. This argument begs the question. It loses sight of the requirement that it is the right that requires protection in the main case that also must require urgent protection in the interim. In short, it seeks to transfer the urgency created by the performance of unauthorized work which is damaging to the environment to the review application, which is not in itself urgent. I re-iterate that the applicant’s case has never been that the review part of application is brought as a matter of urgency. He has, furthermore, known from the very beginning that the 1^st respondent would start work when the conditions of the RoD were fulfilled. A decision to delay the review application until work commenced lawfully (if that was the decision) cannot make the review any more urgent than it was from the very beginning, in April 2007 when the amended RoD was made known. Work which was commenced unlawfully is an entirely different matter.

[8] In meeting an argument that the applicant delayed unreasonably for some four months before bringing the review, Mr Goosen submitted on behalf of the applicant that the review was not urgent and that the delay was justifiable. He argued that it was the action of a prudent and reasonable litigant to consider his position carefully and with deliberation before starting legal proceedings in a complicated matter such as this, and, in doing so, to gather what information he could before issuing process. The question of delay impacts not only on urgency but also on the balance of convenience. If delay is to be measured against considerations of prudence and reasonableness, I must also take into account that it was in the interests of the rights the applicant seeks to protect to dispose of the review before any work commenced which might damage the environment. The applicant knew that the 1^st respondent was obliged by the conditions in the RoD to commence the work within a stipulated period of time. He knew that the developer would do all in its power to fulfil the conditions as soon as possible and so be in a position to commence work. He knew that the developer would be obliged to lay out many millions of rands in the process, particularly in a proposed development of this size. He must have known that the longer he delayed the decision to commence proceedings, the greater the potential financial prejudice to the 1^st respondent if the review were not to succeed. He would also take into account that a long delay in initiating the review proceedings might result in a point being reached where the damage to the environment might already have been done before the review proceedings could be finalized. These considerations would induce a prudent and reasonable applicant to act as expeditiously as possible. As it happens, the financial prejudice to 1^st and 2^nd respondents, which might indeed be ruinous and which might have been avoided if the decision to bring review proceedings had been delayed for a lesser period, is now, on the papers, a real consideration. The result is a dilemma. I have, on the one hand, possible permanent damage to the environment if the interim interdict is refused, which makes review in due course an illusory remedy because the damage will already have been done, whatever the outcome. On the other hand, the 1^st respondent will probably be forced into liquidation if the interim interdict is granted. Success in the review would then be cold comfort; indeed, no comfort at all. The argument no longer can be made that prejudice to the 1^st respondent is cancelled out by the 1^st respondent’s persistent and ongoing unlawful conduct. The result is that the outcome of the application for an interim interdict will involve prejudice to one or other of the parties of such severity that it is impossible to conclude that the balance of convenience favours one of them and not the other. The applicant could have avoided some of this prejudice by bringing proceedings earlier. While this consideration may not swing the balance in favour of the 1^st respondent, it certainly does not point it in the applicant’s favour.

[9] My findings on urgency, the availability of an alternative remedy, and the balance of convenience preclude the grant of an interim interdict, unless, in the exercise of my discretion, I am of the view that, following the approach of the court in Ferreira v Levin NO and other 1995 (2) SA 813 (W) 831-G, the prospects of the applicant succeeding in the review are sufficiently strong to justify overlooking weaknesses in the rest of his case. But the applicant has not made out a strong case that he will ultimately discharge the onus in the review. I can conclude that some of the points made by him on the merits are sufficient to establish a prima facie case which is open to some doubt. But when I have regard to the facts and counter arguments set up by the 1^st and 2^nd respondents I am left, at this juncture and on the facts presently before me, with more than just some doubt. I have significant doubt. I do not wish to go into the matter further in any detail at this preliminary stage because it would not be proper to second guess a finding on issues that must still be canvassed in depth. The review is still to be argued, and the evidence of the 3^rd, 4^th, and 5^th respondents, whose input is vital, is not presently before me.

[10] In view of the dilemma referred to in paragraph [8] above and because both the applicant and the 1^st and 2^nd respondents allege severe prejudice if interim relief is refused or granted, I propose giving the parties, or any of them, leave to approach the court for an order for directions for the expeditious hearing of the review.

[11] There will be the following order:

1. The application in Part A of the notice of motion for an urgent interim interdict is dismissed.

2. There will be an order in terms of the draft order prepared by the 1^st and 2^nd respondents submitting to a final interdict.

3. The costs of the application in Part A are reserved.

4. The application for review under Part B of the notice of motion is postponed sine die, but the parties or any one of them, are given leave to approach the court on these papers for an order for directions for the further expeditious prosecution of the application for review under part B of the notice of motion.

RJW JONES

Judge of the High Court

14 October 2007

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