THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable

Case No:  424/2011

In the matter between:

MIDSTREAM HOME OWNERS ASSOCIATION
First Appellant
MIDFIELD HOME OWNERS ASSOCIATION
Second Appellant
MIDLANDS HOME OWNERS ASSOCIATION
Third Appellant
MIDSTREAM COLLEGE (PTY) LTD
Fourth Appellant
RETIRE @ MIDSTREAM HOME OWNERS
ASSOCIATION

Fifth Appellant
BONDEV MIDRAND (PTY) LTD

Sixth Appellant
MARTHINUS JOHANNES DU TOIT
Seventh Appellant

and
SHOPRITE CHECKERS (PTY) LTD
First Respondent
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY

Second Respondent

HERITAGE HILL HOME OWNERS ASSOCIATION
Third Respondent

GAUTENG PROVINCIAL GOVERNMENT,
MEMBER OF THE EXECUTIVE COMMITTEE
OF AGRICULTURE & RURAL DEVELOPMENT

Fourth Respondent

Case No:   435/2011
In the matter between:
HERITAGE HILL HOME OWNERS ASSOCIATION
Appellant

and

SHOPRITE CHECKERS (PTY) LTD and OTHERS                             Respondents

Neutral citation:
Midstream Home Owners Association v Shoprite Checkers
(424/2011); Heritage Hill Home Owners Association v Shoprite
Checkers (435/2011)  [2012] ZASCA 65 (21 MAY 2012)
Coram:
Mthiyane DP, Nugent, Ponnan and Malan JJA and Ndita AJA

Heard:
02 May 2012
Delivered:
21 May 2012

Summary:
Tswane Town Planning Scheme 2008  – line of no access  –
revocation by Municipality

__________________________________________________________________
ORDER

On appeal from: The North Gauteng High Court, Pretoria (C Pretorius J sitting as
court of first instance):

The appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________________
JUDGMENT

MALAN JA (Mthiyane DP, Nugent and Ponnan JJA and Ndita AJA concurring):

[1] This is an appeal against the order of Pretorius J dismissing with costs the
application of the appellants for a final, alternatively, an interim interdict, prohibiting
the first respondent (Shoprite Checkers) from constructing, completing or utilising an
access point on Brakfontein Road, Centurion, giving entry to Shoprite Checkers’
distribution centre, allegedly in breach of what was called a ‘line of no access’
imposed in terms of approved amendment scheme 945, an amendment to the then
Centurion Town Planning Scheme, 1992, now the Tshwane Town Planning Scheme,
2008. (I explain presently the meaning of that phrase.) The interim relief was sought
pending an application to review and set aside any approval that may have been
granted to Shoprite Checkers to construct the access point; an application for a final
interdict prohibiting any development or construction in breach of the environmental
authorisation; an appeal to the Townships Board; and an application for a
mandamus against the second respondent (the Municipality) compelling it to procure
suitable orders against Shoprite Checkers. The appeal is with the leave of the court
below.

[2] The first five appellants1 in the main appeal (424/2011) all form part of
Midrand Estates which was developed by the sixth appellant. The seventh appellant
is a resident of Midstream Estates and owns a stand there. Midrand Estates is a

1  Midstream  Home  Owners  Association,  Midfield  Home  Owners  Association,  Midlands  Home  Owners
Association, Midstream College (Pty) Ltd, and Retire @ Midstream Home Owners Association.

township development known colloquially as Midstream Estates. Midstream Estates
will when completed comprise a land area of approximately 1000 hectares with
5 000 residential dwellings. Shoprite Checkers’ distribution centre is situated on
Louwlardia Extension 25 Township, Centurion within the industrial corridor on both
sides of the Ben Schoeman  highway (N1) linking Johannesburg and Pretoria.
Brakfontein Road runs east to west towards the N1 and the distribution centre is
located south of it with Olievenhoutbosch Drive on its western border. The Heritage
Hill residential development lies north of Brakfontein Road, opposite the distribution
centre. To the east of it is Midstream Estates entry to which is also from Brakfontein
Road. A number of corporations have established distribution centres or head offices
in this industrial area from as early as 1999 or 2000.

[3] The third respondent in the main appeal, the Heritage Hill Home Owners
Association, was cited as a respondent in the court below. It did not take part in
those proceedings except to file an affidavit associating itself with the application. On
dismissal of the application it was ordered to pay the costs of the application jointly
and severally with the other applicants. It seeks to appeal (in appeal 435/2011)
against the judgment of the court below only on the basis that should the main
appeal of the other appellants be upheld, the order for costs against it should be
reversed.

History
[4] The Shoprite Checkers distribution centre was constructed on land
approximately 49,9159 hectares in extent halfway between the NI highway in the
west and Midstream Estates in the east. Some R3 billion was spent on construction
of the centre, acquisition costs and professional fees and a further R2 billion on
vehicles, equipment and stock. The distribution centre was designed as part of the
Shoprite Checkers 1999 development plan. It was originally envisaged that there
would be three access points, or entrances, to the centre, two in Brakfontein Road
and one in Olievenhoutbosch Drive. However, because a phased development was
planned, only one access point in Brakfontein Road was at first necessary. The
second one on that road was indicated on the development plan as a ‘Future Access
Road’.

[5] For the first phase of the development of the distribution centre a floor space
ratio of only 0,21 was required allowing for the construction of a building with a floor
space of approximately 105 000 m2. Future expansion required an increase in the
floor space ratio to 0,4 allowing the construction of a structure with a floor space of
approximately 200 000 m2. The Municipality was presented with the 1999
development plan when the township on which the centre was constructed was
established during 2001.

[6] Clause 7(2) of the Tshwane Town Planning Scheme, 2008, which I deal with
more fully below, permits the municipality to ‘prohibit the entrance to or exit from a
property to a public street from any boundary of such property, this boundary is
indicated by the following symbol on the map’. The symbol is reflected as a broken
line.  Where such a prohibition has been imposed that line is drawn on Map
B of the scheme along the relevant boundary of the property concerned.  It is that
line that has been referred to in the proceedings as a ‘line of no access’.

[7] In approving the township the Municipality imposed, with the exception of a
certain portion 58 metres wide, a line of no access along the entire northern
boundary of the property along Brakfontein Road. This limited access point was to
be used by motor vehicles attending the offices of Shoprite Checkers at the
distribution centre. A second line of no access was also imposed along the entire
western boundary of the property along Olievenhoutbosch Drive with the exception
of a certain portion some 85 metres wide. Within this portion Shoprite Checkers
constructed an access point or entrance for trucks which is some 37 metres wide.
Only these two points of access were approved in terms of the approved amendment
scheme 945, which is the operative town planning scheme relating to the property.
The access points were reflected on the approved B series maps following approval
of scheme 945.

[8] The application for the establishment of the township, envisaging a floor
space ratio of 0,4, was approved on 12 September 2001. The township was
proclaimed on 4 September 2002. However, because Shoprite Checkers did not
want to incur liability for taxes on the property based on a floor space ratio of 0,4
(which was not needed for the first phase of the development), it was recorded in

condition 4(2)(c) of the conditions of the township approval that the floor space ratio
would be restricted to 0,21, but that it could be increased to a maximum of 0,4 with
the written consent of the local authority. A services agreement between Shoprite
Checkers and the Municipality was concluded on 16 August 2001 in terms of which
Shoprite Checkers’ contribution to external engineering services relating to the
establishment of the township was calculated at the higher floor space ratio.

[9] The fresh produce warehouse on the property was constructed and came into
operation towards the end of 2001. The dry goods warehouse of 55 000 m2 was built
and became operative in 2002. The distribution centre, however, had to be enlarged
and, on 11 April 2008, Shoprite Checkers applied for the increase of the floor space
ratio from 0,21 to 0,4. The application was approved on 9 October 2008. The
Municipality imposed the following conditions when approving the increase:
‘1.1 City Planning and Development
(1) The height of buildings on the erf shall be 2 storeys, but may be increased with approval
of the local authority.
...
(3) The floor area ratio (FAR) shall not exceed 0,4.
(4) A site development plan and a landscape development plan, unless otherwise
determined by the Municipality, compiled by a person suitably qualified to the satisfaction of
the Municipality, shall be submitted to the Municipality for approval prior to the submission of
building plans.
(5) The building lines shall be in accordance with the site development plan.
…
(8) Entrances to and exists from the erf shall be located, constructed and maintained to the
satisfaction of the Municipality.
…
2.1.2.1 Infrastructure Planning and Management
1. A complete Site Development Plan must be submitted before any building construction
may commence, at the cost of the applicant, for the approval of the Division: Roads and
Storm Water. Engineers Drawings with details regarding access, parking layout and storm
water drainage must be submitted with the Site Development Plan.’

[10] Following this approval, the Municipality requested a comprehensive Traffic
Impact Study in order to motivate the proposed access points including the disputed

access point in Brakfontein Road. The study was submitted in February 2009. The
Public Works and Infrastructure Development Department of the Municipality on 28
April 2009 approved the Traffic Impact Study but imposed certain conditions, among
others that –
‘1.6 Access:
The proposed extended warehousing facilities will have the following accesses:

Access 1 from Brakfontein Road, proposed new access 570m to the east of the
Olievenhoutbosch Drive/Brakfontein Road intersection: This access will be used only
for inbound heavy vehicle traffic. [This is the access point in dispute]

Access 2 from Brakfontein Road, 300m to the east of the Olievenhoutbosch
Drive/Brakfontein Road intersection: This existing access to the office building will
only be a left-in, left-out access in the future for the office park in the northeast corner
of the development and to the parking area for the personal cars of the truck drivers
of the Shoprite Distribution Centre.

Access 3 from the Olievenhoutbosch Drive: This is a proposed new access
approximately 225m south of Brakfontein Road. This access will be a left-in, left-out
for light vehicles to the office park only.

Access 4 from the Olievenhoutbosch Drive: This existing access will in future only be
used for all outbound heavy vehicle traffic and for light vehicle traffic to and from the
fresh market.

Access 5 …
1.7 (i) Access 1: Brakfontein Road/Heavy vehicle access to Shoprite DC

2010 Proposed Upgrades:
 Introduce traffic signal control (when warranted)
 Exclusive left and exclusive right turn lanes on southern approach
 Exclusive left turn lane on eastern approach
 Exclusive right turn lane on western approach
 Future planning for the road includes two through lanes in the east-west direction, but
one lane is sufficient for the development traffic demand. (Hence, doubling of
Brakfontein Road will not be implemented by Shoprite).’

[11] The site development plan, showing the new access point (access 1 referred
to in the previous paragraph), was approved by the Municipality on 29 September
2009. On 25 January 2010, the Municipality authorised Shoprite Checkers to
commence with the road widening activities to construct the new access.

Construction began in February 2010 and the design for the traffic signal was
approved during June 2010, and its installation on 15 July 2010. The new access
point was completed by the time Shoprite Checkers’ answering affidavit was filed in
October 2010. The traffic signal was installed in January 2011. The additional
facilities including the extension of the warehouse and new access were completed
at a cost of R345 million and have become fully operational.

[12] In the June 2010 Shoprite Checkers financial report Mr JW Basson, chairman
of the group, described the distribution centre as the largest of the group
‘where distribution facilities have virtually doubled from 80 000 m2 to 145 000 m2. The main
building of 114 000 m2 will be the largest distribution centre under one roof on the continent.
On completion at the end of the 2010 calender year the facility will serve as the distribution
point for about 90% of ambient products delivered to approximately 380 stores in the
Gauteng area and beyond.
More than 1,100 suppliers will be delivering their products to the centre where they are
stored, collated, and then distributed to retail stores on a high-frequency basis.
The new Centurion distribution centre was developed in a responsible manner using
environment-friendly approaches to construction. This was followed through with further
investment in environment-friendly design that includes treatment of waste water and an
ability to recycle waste. Central reclamation forms part of the Group’s safety and recycling
programme, for the removal of damaged stock at the earliest opportunity, to avoid possible
contamination of other products and control waste.’

Clear right
[13] In their application for an interdict the appellants allege that the new access
point in Brakfontein Road was constructed in breach of the line of no access
imposed by the Municipality when the township was originally approved pursuant to
amendment scheme 945. The main issue, the deponent to the founding affidavit
stated, was the ‘unlawful’ use by Shoprite Checkers of their property in constructing
the disputed new access point in Brakfontein Road. The appellants, despite inquiries
made at the Municipal offices, could find no formal application for approval of the
new access point nor for the revocation of the line of no access. In addition, the
deponent to the founding affidavit referred to the zoning certificate relating to the
property, dated 21 September 2010, annexure 3 of which reflected access to the
property as set out in the B series maps, in other words, only the two originally

approved access points – one in Brakfontein Road and the other in
Olievenhoutbosch Drive.

[14] Section 20 of the Town Planning and Townships Ordinance 15 of 1986
regulates the provisions which may be contained in a town planning scheme such as
the Tshwane Town Planning Scheme, 2008. The general purpose of a town planning
scheme is the co-ordinated and harmonious development of the area so as to
promote its health, safety, good order, amenity, convenience and welfare (s 19).2
The Municipality’s power to prepare a town planning scheme derives from s 18 of the
Ordinance. Section 20(1)(a) provides that the local authority may in its discretion and
on conditions as it may determine consent to the use of any land or building for a
particular purpose. It may also, in its discretion and on such conditions as it may
determine, grant exemption from the provisions of the scheme or relax its
requirements (s 20(1)(b)).

[15] Clause 7 of the Tswane Town Planning Scheme deals with the ‘prohibition of
access’ and provides –
‘Entry to or exit from any property to or from a public street, shall be subject to the following
conditions:
(1)
Entrances to and exists from such property, “Residential 1” and “Residential 5”
excluded, shall be located, constructed, drained and maintained to the satisfaction of the
Municipality, and if required by the Municipality, constructed with a dust-free surface, internal
driveways included: Provided that entrance gates to such property shall be located at least
6,0 m from the edge of the tar of a street or road.
(2)
The Municipality may prohibit the entrance to or exit from a property to a public street
from any boundary of such property, this boundary is indicated by the following symbol on
the map: [symbol shown]
With the proviso that the Municipality may revoke such access prohibition on receipt of a
written application for its permission, subject to any conditions that the Municipality may
impose, except in the case of access restrictions in respect of National or Provincial Roads.’
(My emphasis.)

2Baron & Jester v Eastern Metropolitan Local Council 2002 (2) SA 248 (W) para 45.

[16] Clause 15 of the Tshwane Town Planning Scheme, 2008 provides –
‘The permission of the Municipality to use land and buildings or to relax certain conditions
stipulated in this Scheme, its Schedules and Annexures, where such permission is explicitly
stated, shall be subject to an application procedure as required by the Municipality and such
application shall be subject to the following:
(1)
documents as prescribed by the Municipality shall be submitted with the prescribed
fee;
(2)
the prescribed advertisement procedure shall be complied with and the Municipality
may waive this requirement wholly or partly if it is satisfied that such non-compliance is not
of such a material nature that it is likely to affect anyone detrimentally;
(3)
the Municipality may approve or refuse such application subject to such conditions
the Municipality deems necessary to regulate such permission; and
(4)
the Municipality may require that a contribution in respect of engineering services is
payable in terms of Section 20 of the Town Planning and Townships Ordinance, 1986
(Ordinance 15 of 1986) as and when required by the Municipality.’

[17] It is not in dispute that clause 15 regulates the relaxation of a line of no
access. The reference in clause 15(2) to the ‘prescribed advertisement procedure’ is
not a reference to the advertisement procedure specified in clause 16(2) to (9).
Clause 16 deals with ‘consent use procedure’. The revocation of a line of no access
does not fall into the field of application of clause 16 as it is formulated in clause
16(1).

[18] The Tshwane Scheme does not contain a definition of ‘application’ as used in
clauses 7 and 15 but, instead, defines ‘permission of the Municipality’ as ‘the
permission or approval granted by the Municipality in terms of Clause 15 to use land
and buildings for a specific use or to relax certain conditions applicable to the use of
land and buildings’. Clause 15(1) states that the ‘permission’ of the Municipality to
use land or to relax certain conditions stipulated in the Scheme, ‘where such
permission is explicitly stated’, shall be subject to an application procedure. Clause
7(2) expressly refers to ‘a written application’ for the Municipality’s permission to
relax a line of no access. Clause 15 provides that the permission of the Municipality
shall be subject to an application procedure ‘as required by the Municipality’. It is
further provided that the application shall be subject to the submission of documents

as prescribed and that the ‘prescribed advertisement procedure’ shall be complied
with, although the Municipality may waive ‘this requirement wholly or partly if it is
satisfied that such non compliance is not of such material nature that it is likely to
affect anyone detrimentally’.

[19] The Municipality’s council resolved on 29 November 2007 to approve the
procedure for permission under clause 15 of the Tshwane Scheme.  In so far as
clause 7 is concerned the procedure ‘as required by the Municipality’ is set out in
annexure 5 to the resolution:
‘Written application must be submitted to City Planning and shall contain the following:
a) A motivating memorandum;
b) Power of attorney if the applicant is not the owner;
c) Copy of the title deed;
d) Site plan indicating the access required;
e) Zoning certificate and/or Annexure B/Annexure T/Annexure or Schedule or Consent
use.
f) Application fee.
Advert not necessary
Circulate to Transport Engineers and Traffic section.’ (My emphasis.)
This resolution was passed to provide for a ‘streamlined’ manner in which application
could be made for the Municipality’s permission and ‘a more simplistic method for
advertisement if so required’ (para 4.4.21 of the resolution). The council resolved not
to require applications under clause 7 to be advertised.  In other matters, however,
such as where application is made for permission to erect a second dwelling on a
property, an advertisement in the form of a placard on site is required (clause 14(10)
of annexure 5) and also where permission is sought to establish a spaza shop in a
dwelling (Schedule 9 to annexure 5).

[20] The consent that was granted to increase the floor space ratio (dated 11 April
2008) was conditional upon ‘[a] complete Site Development Plan [being] submitted...
at the cost of the applicant, for the approval of the Division: Roads and Storm Water.
Engineers Drawings with details regarding access, parking layout and storm water
drainage must be submitted with the Site Development Plan.’ The Traffic Impact

Study was approved on 28 April 2009 and the site development plan on 29
September 2009.

‘Revocation’ of line of no access.
[21] The appellants contended that there was no revocation of the line of no
access and the new point of access was thus not permitted. Clearly there was no
express revocation of the line of no access.  But it was submitted on behalf of
Shoprite Checkers that it was revoked by implication on 9 October 2008 when the
Municipality informed their town planner that the application for the increase of the
floor space ratio to 0,4 had been successful. In terms of condition 1.1(4) of the
approval a site development plan had to be submitted prior to the approval of
building plans. Condition 1.1(8) required Shoprite Checkers to locate, construct and
maintain the entrances to and exists from the property to the satisfaction of the
Municipality. It was submitted that from this condition it followed that the Municipality
expressly, alternatively, by necessary implication, revoked the line of no access in
approving the new access points.

[22] The appellants have submitted that the decision by the Municipality could not
have been taken by implication because in its approval of the increase on the floor
space ratio the Municipality stated that ‘[t]he requirements of the Centurion Town
Planning Scheme, 1992 remain applicable’. Since the line of no access was a
condition of the approval of amendment scheme 945, so the argument went, the
express condition referred to had the effect of retaining the line of no access
originally imposed, notwithstanding the approval of the development plan. They
submitted further that the rules of natural justice and administrative law would be
rendered nugatory if a decision constituting administrative action could be taken by
implication.

[23] In my view the submissions made on behalf of the appellants attach undue
significance to the use of the word ‘revocation’ in clause 7(2) of the Scheme. The
submission suggests that the depiction alone of the line on Map B constitutes the
prohibition, which remains in place until such time as the line is physically erased
from the map, whether wholly or in part, which in my view is not correct. The
prohibition upon access emanates from the decision by the Municipality to prohibit it.

It is clear from clause 7(2) that what may be prohibited may also be permitted by a
decision to permit.  When read together with clause 7(2), properly construed, the line
that is drawn on Map B is no more than a physical depiction of a decision to prohibit,
but subject to any decision to permit. The clause does not require the decision to
take the form of a physical erasure of the line. It requires no more than that
permission be granted as a fact.

[24] A person who seeks that permission is required by clause 15 to do so
according to the application procedure required by the Municipality.  The required
procedure was laid down in the resolution that I have referred to in paragraph 17,
which lists the ‘documents as prescribed by the Municipality’ (clause 15(1)) when
such an application is made.  Clearly that prescription of the documents to be
submitted when permission is sought is solely for the benefit of the Municipality and
it is entitled to waive the requirement. So far as clause 15(2) subjects an application
to compliance with ‘the prescribed advertisement procedure’ it is apparent from the
resolution that no advertisement procedure has been prescribed.

[25] I cannot see how the submission of the site development plan for approval,
depicting the proposed access, can be construed as anything other than an
application for permission from the Municipality to have that access.  An ‘application’
as ordinarily understood in this context is, after all, nothing more than a request.
That the Municipality did not insist upon the prescribed application form being
completed, nor upon the documents specified in the resolution accompanying the
development plan, does not seem to me to be material.  I said earlier that the
requirement that those documents be submitted when an application is made is
solely for the benefit of the Municipality and it is not obliged to insist upon it.

[26] For those reasons I think it is clear that Shoprite Checkers has indeed been
granted permission to have the disputed access, as the Municipality was entitled to
do.  For so long as that permission stands Shoprite Checkers is not acting unlawfully
and the relief that was sought in that regard was properly refused.

Interim interdict

[27] The appellants sought interim relief against the respondents prohibiting
Shoprite Checkers from constructing, completing or using the new access point
pending finalisation of the following proceedings: the appeal to the Townships Board
in terms of s 139 of the Ordinance against the revocation of the line of no access; the
application to review and set aside of the decision to revoke the line of no access; a
final interdict against Shoprite Checkers to stop any development or construction in
breach of any existing environmental authorisation; and the obtaining of mandamus
against the Municipality to procure suitable orders against Shoprite Checkers relating
to its alleged illegal conduct. In argument counsel limited his address to the
prospects of success of the intended application to review and set aside the decision
to revoke the line of no access.

[28] I have already found that Checkers Shoprite has been granted permission as
a fact to have access, as the Municipality was entitled to do, and is not acting
unlawfully.  Nonetheless, the interim interdict was sought on the basis that
permission ought in law not to have been granted, and is liable to be set aside.

[29] I think it is fair to say that the true complaint by the appellants is that they were
not given an opportunity to oppose the request to the Municipality for permission to
access the property.  In that respect the submission was that the decision by the
Municipality constituted administrative action and they were entitled to be heard
before the decision was made.  Once more I do not think that is correct.

[30] Where the Municipality prescribes an ‘advertisement procedure’ as
contemplated by clause 15(2) it might be inferred that it invites objections from
interested parties as part of its procedure and will grant objectors a hearing.  But the
clause does not demand that the Municpality must prescribe such a procedure and
in this case it chose not to do so.

[31] Nonetheless, so it was submitted, the decision constituted ‘administrative
action’ under the Promotion of Administrative Justice Act 3 of 2000, which was
subject to a fair administrative procedure, which includes giving a reasonable
opportunity for interested parties to be heard.  Section 3(1) of the Act, read with s
3(2), prescribes an opportunity to make representations being given only to persons

whose ‘rights or legitimate expectations’ are materially and adversely affected by the
administrative action. I do not think that the appellants have demonstrated any right
that was affected by the decision to allow the access.  Clearly the members of the
appellants – like other members of the public – have no right to use the road without
any impediment. Nor was anything done by the Municipality to induce in the
appellants an expectation that they would be heard before access from the road was
permitted.

[32] It follows that the appellants have not shown that they would be successful on
review and there are no grounds for granting interim relief.

[33] The main appeal should therefore be dismissed. As a result no order need be
made on the appeal of the third respondent. The following order is made:

The appeal is dismissed with costs, including the costs of two counsel.

__________
F R MALAN
JUDGE OF APPEAL

APPEARANCES:

For  Appellant:

N G D Maritz SC and

M P van der Merwe

J W Schabort (Case 435)

Instructed by:

Tim du Toit Attorneys

Pretoria

Naudes Inc

Bloemfontein

For  Respondent:

S J Grobler SC (1st Resp) and

A Liversage (1st Resp)

Instructed by:

Werksmans Inc (1st Resp)

c/o Weavind & Weavind

Pretoria

Strauss Daly (1st Resp)

Bloemfontein

Hugo & Ngwenya Attorneys (2nd Resp)

Pretoria

(2nd Respondent does not oppose the Appeal)

Jarvis Jacobs Raubenheimer Inc (3rd Resp)

Pretoria

Rossouws Attorneys (3rd Resp)

Bloemfontein

The State Attorney (4th Resp)

Pretoria

The State Attorney (4th Resp)

Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From: The Registrar, Supreme Court of Appeal

Date:
21 May 2012

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

Midstream Home Owners Association v Shoprite Checkers; Heritage Hill Home
Owners Association v Shoprite Checkers

[1] The Supreme Court of Appeal today dismissed an appeal against a
judgment of the Pretoria High Court dismissing an application for a final,
alternatively, an interim interdict against Shoprite Checkers prohibiting the latter
from constructing, completing or utilising an access point (or entrance) on
Brakfontein Road, Centurion, giving entry to Shoprite Checkers’ distribution
centre, allegedly in breach of a line of no access imposed in terms of approved
amendment scheme 945, an amendment to the then Centurion Town Planning
Scheme, 1992, now the Tshwane Town Planning Scheme, 2008. The interim
relief was sought pending an application to review and set aside any approval
that may have been granted to Shoprite Checkers to construct the access point;
an application for a final interdict prohibiting any development or construction in

breach of the environmental authorisation; an appeal to the Townships Board;
and an application for a mandamus against the second respondent (the
Municipality) compelling it to procure suitable orders against Shoprite Checkers.

[2] The first five appellants, four of which are home owners associations  and
the other a school, all form part of Midrand Estates which was developed by the
sixth appellant, Bondev Midrand. The seventh appellant is a resident of
Midstream Estates and owns a stand there. Midrand Estates is a township
development known colloquially as Midstream Estates. Midstream Estates will
when completed comprise a land area of approximately 1000 hectares with 5 000
residential dwellings. Shoprite Checkers’ distribution centre is situated on
Louwlardia Extension 25 Township, Centurion within the industrial corridor on
both sides of the Ben Schoeman (N1) highway linking Johannesburg and
Pretoria. Brakfontein Road runs east to west towards the N1 and the distribution
centre is located south of it with Olievenhoutbosch Drive on its western border.
The Heritage Hill residential development lies north of Brakfontein Road,
opposite the distribution centre. To the east of it is Midstream Estates entry to
which is also from Brakfontein Road. A number of corporations have established
distribution centres or head offices in this industrial area from as early as 1999 or
2000.
[3] In the June 2010 Shoprite Checkers financial report Mr JW Basson,
chairman of the group, described the distribution centre as the largest of the
group –

‘where distribution facilities have virtually doubled from 80 000 m2 to 145 000 m2.
The main building of 114 000 m2 will be the largest distribution centre under one
roof on the continent.
On completion at the end of the 2010 calender year the facility will serve as the
distribution point for about 90% of ambient products delivered to approximately
380 stores in the Gauteng area and beyond.

More than 1,100 suppliers will be delivering their products to the centre where
they are stored, collated, and then distributed to retail stores on a high-frequency
basis.
The new Centurion distribution centre was developed in a responsible manner
using environment-friendly approaches to construction. This was followed
through with further investment in environment-friendly design that includes
treatment of waste water and an ability to recycle waste. Central reclamation
forms part of the Group’s safety and recycling programme, for the removal of
damaged stock at the earliest opportunity, to avoid possible contamination of
other products and control waste.’

[4] The Supreme Court of Appeal dismissed the appeal because it found that
the Municipality did in fact approve of the new access point. The submission of
the site development plan for approval, depicting the proposed access, could not
be construed as anything other than an application for permission from the
Municipality to have that access.  The appellants were therefore not entitled to a
final interdict, nor to an interim one. As far as the latter is concerned, the SCA
found that the Municipality had not prescribed a notice procedure for applications
for the revocation of a line of no access to be made: no advertisement was
required. The appellants had for this and other reasons not demonstrated that
they would succeed on review. The appeal was thus dismissed.