THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case no:  86/2006

In the matter between
eTHEKWINI MUNICIPALITY

APPELLANT

and

TSOGO SUN KWAZULU-NATAL (PTY) LTD
RESPONDENT

Coram:
HOWIE P, BRAND, HEHER JJA, MUSI and THERON  AJJA

Heard:
13 MARCH 2007

Delivered: 28 MARCH 2007

Summary: National Building Regulations and Building Standards Act 103 of 1997
s 7(1) – ‘refuse to grant its approval’ – interpretation.

Neutral citation: This judgment may be referred to as eThekwini Municipality v
Tsogo Sun Kwazulu-Natal [2007] SCA 38 (RSA).

_____________________________________________________________________

HEHER JA

HEHER JA:
[1] This appeal turns on the interpretation of s 71 of the National Building Regulations
and Building Standards Act 103 of 1977 and the purported compliance by the appellant
with its terms.
[2] The respondent has for several years been engaged in a phased development of a
casino complex on a site known as The Village Green near Durban’s Snell Parade. The
implementation of the project has required an extended period of interaction with the
Kwa Zulu-Natal Gambling Board and the appellant. The relationship with the latter has
been dogged by disagreement.
[3] The site falls within the area of the appellant’s Durban Town Planning Scheme (in
the course of preparation). The zoning of the land – Special Zone No 84: Village Green –
is regulated by scheme clauses. Those relevant to the present dispute are the following:

1 Section 7(1) provides:
‘(1)
If a local authority, having considered a recommendation referred to in section 6 (1) (a)-
(a)
is satisfied that the application in question complies with the requirements of this Act and any other applicable law,
it shall grant its approval in respect thereof;
(b)
(i)
is not so satisfied; or
(ii)
is satisfied that the building to which the application in question relates-
(aa)
is to be erected in such manner or will be of such nature or appearance that-
(aaa)
the area in which it is to be erected will probably or in fact be disfigured thereby;
(bbb)
it will probably or in fact be unsightly or objectionable;
(ccc)
it will probably or in fact derogate from the value of adjoining or neighbouring
properties;
(bb)
will probably or in fact be dangerous to life or property,
such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal:
Provided that the local authority shall grant or refuse, as the case may be, its approval in respect of any application where the
architectural area of the building to which the application relates is less than 500 square metres, within a period of 30 days
after receipt of the application and, where the architectural area of such building is 500 square metres or larger, within a
period of 60 days after receipt of the application.’

‘1.
(a)
Purposes for which land may be used or for which buildings may be

erected and used:-
Casino, licensed hotel, place of amusement, residential building, restaurant, shop and
other uses considered by the Council to be ancillary
to the aforementioned uses
or reasonably necessary for the development of this Special Zone.
(b)
Purposes for which land may be used or for which buildings may be erected and used
only with the special consent of the Council:-

Any other uses not mentioned in paragraph (a).’

. . .
4.
On-site parking shall be provided to the satisfaction of the Executive Director (Physical
Environment).

. . .
8.
In the case of a casino development, no buildings or structures shall be erected within this
Special Zone unless they are in accordance with an Integrated Development Plan approved by
Executive Director (Physical Environment) for the entire Special Zone.’
[4] It is common cause that an Integrated Development Plan (hereinafter ‘the IDP’)
was prepared and approved and amended from time to time. For the purposes of this
appeal the version of July 2002 is the one applicable. A copy was made available to the
court a quo and included in the record before us. It is not a plan in the conventional sense
but rather a planning instrument which consists of text, plans and drawings running to
some fifty pages. It is perhaps not without significance in the light of the submissions of
counsel for the respondents (which are referred to below) concerning the lack of weight
to be attached to this document, that the following is said in the Introduction:
‘The Special Zone was formulated to allow a complete and comprehensive development of the site’.

[5] The respondent purchased the site from the appellant under an agreement of sale
signed in November 2001 (Annexure JAM 3 to the founding affidavit). Although its
terms are in my view peripheral to this appeal, attention may be drawn to the following
clauses for a proper understanding of certain of the relief granted by the court a quo:
‘15.
DEVELOPMENT AND EIA2 CONSTRAINTS
15.1
The property shall only be used or developed in accordance with the relevant municipal bylaws
and town planning scheme regulations in force from time to time, as well as the National
Building Regulations and Standards Act, Act 103 of 1977, or such other legislation as may be
applicable. In this connection it is recorded, and the Seller warrants, that the property is zoned
Special Zone 84 and the Purchaser shall comply with the regulations pertaining to that zone.
15.2
Subject to the rights afforded to the lessees under the Waterworld and Animal Farm leases, the
property shall be used solely for the purpose of a casino and ancillary purposes as contemplated
in terms of the IDP and any consent to a change in the usage shall be subject to the prior written
consent of the Seller upon such terms and conditions as the Seller may impose, including any
rights that the Seller may have in terms of clause 16.’
and
‘18.
DEVELOPMENT
18.1
The Purchaser shall develop the property substantially in accordance with the IDP, the
conditions in the Decision Notice, and the EIA conditions, or any amendments thereto. The
Purchaser shall also develop the property substantially in accordance with such temporary
licence conditions as may be issued by the Board from time to time in terms of the Act.’
[6] In November 2004, acting pursuant to s 4(1)3 of the Act, BKS Engineers
submitted three plans to the appellant on behalf of the respondent to give effect to

2 Environmental Impact Assessment
3 Section 4(1) provides:
‘(1)
No person shall without the prior approval in writing of the local authority in question, erect any building in

amendments to the casino licence issued by the Board. The first plan, about which
nothing further requires to be said, related to the demolition of a recreational facility
known as ‘Waterworld’. The second was for the construction of a temporary parking lot
and became the subject of a stop notice in terms of s 4(1) of the Act on 30 November
2004. In fact the work was completed by 8 December of that year. It too can be
disregarded for present purposes.
[7] The third plan (numbered 611/11/04) gave rise to the present dispute. It was a
building plan for the construction of a multi-level parking facility which, according to
the conditions of amendment of the licence, the respondent was required to develop at a
cost of R27 million and complete and open by 31 July 2005.
[8] On 15 December 2004 attorneys representing the respondent wrote to the City
Manager of the appellant as follows:
‘OUR CLIENT: TSOGO SUN KWAZULU-NATAL (PTY) LTD: OUTSTANDING PLANS IN
RESPECT OF TEMPORARY PARKING, ENTRANCE AND PARKADE AT 20 BATTERY
BEACH ROAD

We refer to our faxes of 2 December and 9 December 2004 in the above connection.
Two sets of plans are presently lodged with your Municipality. The first relate to the temporary parking
area (which was the subject of the stop work order that was dealt with in our telefax of 2 December)
and a new entrance way and toll plaza. The second relate to a new parkade on the property.
The plans in respect of the first works were lodged with your Municipality on 7 October 2004, and
referrals were attended to by BKS Engineers between that date and 19 November 2004. Our client and
its professional team are therefore satisfied that the plans are now capable of approval.
The plans relating to the parkade were submitted to your Municipality on 10 November 2004. We are
instructed that the architects have received no communications at all from the relevant officials in

respect of which plans and specifications are to be drawn and submitted in terms of this Act.’

response thereto, and given the time elapsed, that is unusual. They have concluded either that the
consideration of the plans has been “put on hold” due to the dispute regarding IDP compliance, or that
the plans are in order, and are similarly capable of approval.
Our client has reviewed the process normally adopted in the consideration of plans of this nature, and is
satisfied that both sets of plans should have been approved by now through the exercise of reasonable
diligence and skill by your officials. Our client is entitled under the constitution and the provisions of
other relevant legislation, to expect efficient administrative action from your Municipality in the
consideration of plans lodged with it under the National Building Regulations.
However, mindful that this is the Christmas season, and that the Municipality may have been inundated
with plans during the recent past, our client is prepared to grant a short extension to your officials to
complete any outstanding tasks there may be in relation to the plans, and to issue its formal approval
thereof. In the circumstances we are instructed to demand from you, as we hereby do, that unless both
plans are approved, and such approval is communicated to our clients by no later than 7 January 2004,
our client will approach the High Court for an appropriate Order.
Our client makes itself and its professional team available between now and 7 January 2004 to attend to
any referrals or queries that may be raised by the relevant officials.’
[9] The appellant responded first to the issue of the temporary parking facility (on 21
December). On 24 January 2005 the respondent’s attorney sent a strongly worded
demand drawing attention to the fact that the period of 60 days afforded to the council by
s 7(1) of the Act within which to grant or refuse its approval of the plans for the parkade
had expired and requiring approval by no later than the 28th of that month failing which
the respondent would bring an application to court for an order in terms of s 8(1)4 of the

4 Section 8(1) provides:

‘If a local authority fails to grant or refuse timeously its approval in accordance with section 7 in respect of an
application, a court may on the application of the applicant concerned make an order directing such local authority to
perform its duties and exercise its powers in accordance with that section within the period stated in such order, or make
such other order as it may deem just.’

Act directing it to do so.
[10] Only on 31 January 2005 did the appellant respond. The terms of its letter are
central to the present dispute:
‘PROPOSAL: NEW PARKADE AND TOLL PLAZA, SUNCOAST CASINO:
PLAN NO. 6111104 – 20 BATTERY BEACH ROAD
Kindly note that the following items are required to be attended to in order that further consideration
may be given to the above application in terms of Section 7 of the National Building Regulations and
Building Standards Act 103 of 1977:-
1.
The application does not comply with the Integrated Development Plan of July 2002 and
therefor cannot be considered until either:
1.1

The application complies with the Integrated Development Plan of July 2002; or
1.2

An application is made to amend the Integrated Development plan of July 2002 to allow
for the proposal, and the approval of Council is obtained for such change to the
Integrated Development Plan of July 2002.
Once the above has been attended to, the plans will be given further consideration.
Note: For your information you are furthermore advised that in terms of the Act, this application may
be submitted anew at no additional cost, within a period not exceeding one year from the date

of this notice on the following conditions:-
(a)
if the plans, specifications and other documents have been amended in respect of any aspect
thereof which gave cause for the notice; (Note: all alterations to the drawings to be signed and
dated) and
(b)
if the plans, specification or other documents in their amended form do not substantially differ
from the plan, specifications or other documents which were originally submitted.
Please arrange to collect the plans from the Collections Counter at Room G8 on the ground floor of the
Development and Planning Unit, situated at 166 Old Fort Road, Durban.’
[11] On 25 February 2005 the respondent duly launched its threatened application. It
sought an order in terms of s 8(1) directing the appellant to approve plan 611/11/04 for
the construction of the multilevel parking facility. In the alternative it claimed an order
directing the appellant to grant or refuse its approval within five days of the granting of
the order.
[12] With that statutory provision, which is limited to a local authority that fails to
perform the duty imposed on it by s 7, should be contrasted s 9(1), upon which the
appellant relied in both courts, and which provides, inter alia, an appeal against the
decision of a local authority taken in terms of s 7 to refuse to grant approval or against
the interpretation or application by a local authority of a building regulation or by-law.5
[13] The primary dispute between the parties in the application to court was whether
the appellant had, in its letter of 28 January 2005 communicated a decision to refuse to

5 Section 9(1) provides:

‘Any person who-
(a)
feels aggrieved by the refusal of a local authority to grant approval referred to in section 7 in respect of the erection
of a building;
(b)
feels aggrieved by any notice of prohibition referred to in section 10; or
(c)
disputes the interpretation or application by a local authority of any national building regulation or any other
building regulation or by-law,
may, within the period in the manner and upon payment of the fees prescribed by regulation, appeal to a review board.’

grant approval of the planning application or whether, properly interpreted, the
notification merely amounted to a postponement or avoidance of a decision. The debate
was coloured by allegations against the appellant of ulterior motives designed to pressure
the respondent into meeting planning or development objectives of the appellant which
were not acceptable to the respondent. (I consider the significance of this controversy
below). From the appellant’s side it was contended that the letter in question contained
an unequivocal refusal to approve the plans and the only remedy open to the respondent,
once that happened, lay in the appeal provided by s 9(1). Until it had exhausted this
‘domestic remedy’, so it was submitted, the court could not and would not entertain an
application to review the appellant’s decision. Suffice it to say at this stage that if the
respondent’s reliance on s 8(1) is correct no question of review arises because the section
contains express authorization to approach a court to compel compliance with the duty
imposed by s 7(1); if, on the other hand, its reliance was misplaced, the respondent has
set up no alternative basis for interference with the decision, such as a review.
[14] Jappie J, in giving judgment, said that the respondent had sought an order in the
following terms:
‘1.
That the respondent is directed in terms of section 7 of the National Building Regulations and
Buildings Standards Act 103 of 1997 to grant or refuse approval of the applicant’s plan No.
611/11/04 within 5 days of the granting of this order;
2.
The construction by the applicant of a parkade in accordance with the plan, Annexure “JAM9”
is not prohibited by the IDP or Regulation 8 of the regulations applicable in Special Zone No.
84 of the respondent’s town planning scheme in the course of preparation and does not
constitute a breach of the provisions of clause 15.2 of Annexure “JAM3”.’

[15] The relief in paragraph 2 was, however, neither asked for in the notice of motion
nor was a substratum for its grant laid in the founding affidavit. There was no indication
in the record of proceedings filed in this Court as to whether, how or when the notice of
motion was amended or what the appellant’s attitude was in that regard. We were
informed by counsel at the hearing that the claim for declaratory relief was first raised in
the applicant’s heads of argument submitted to the court a quo. No formal application for
amendment was made. Nor is it clear whether the council resisted the proposal. In any
event the order was made and no leave was sought to appeal against the propriety of
making it. Respondent’s counsel informed us that its purpose was to vent the true dispute
between the parties, viz whether the council could justify its negative attitude to the
submission of the planning application by reliance on the supposed non-compliance of
the application with the IDP. Counsel submitted that the court a quo had been correct in
finding that the IDP provided no such excuse and that ‘any reference to the IDP in the
determination whether building plan No 611/11/04 is to be approved or rejected in terms
of the Act is irrelevant. . . The respondent . . . can . . . not be permitted to rely on the
broad principles as they are set out in the IDP to justify the exercise of public power
given to it by the Act’ (thus Jappie J).
[16] The learned judge made an order in terms of the relief which he had quoted. On
application he granted the local authority leave to appeal to this Court.
[17] In his judgment the judge found that the notification of 31 January 2005 ‘appears
equivocal and falls short of what is required by s 7 of the Act as it communicates neither
approval nor rejection of the building plan’. He appears to have equated ‘rejection’ with

a refusal to give approval. That seems to evince a misunderstanding of s 7. A local
authority is not required to reject an application but only to refuse to approve it. There is
a significant difference between the two which is made clear in the Act and appears
equally plainly in the letter of notification. While ‘rejection’ may bear a sense of outright
and final refusal, a ‘refusal to approve’ is more flexible and does not necessarily shut the
door on future approval. This broader meaning is implicit in s 7(5).6
[18] No doubt those applications which cannot be brought within the express
reservations in s 7(5) must be regarded as having effectively been rejected. In the last-
mentioned event the local authority becomes functus officio and the applicant who
wishes his plans to receive further consideration will have to bring a new application in
terms of s 4(3) of the Act. But a local authority is not functus officio if the plans which it
has previously refused to approve qualify for reconsideration by reason of s 7(5)(a) or
(b). In such event the earlier refusal to approve was merely conditional and may be
reversed.7
[19] Even in this sense of a refusal to approve, the notification must no doubt be
unequivocal: it must manifest approval of the plans or a refusal to approve them.
[20] How then is one to understand the notification of 28 January? In my view, if the
letter is read as a whole in the context of the enabling legislation, it conveys an

6 ‘(5)
Any application in respect of which a local authority refused in accordance with subsection (1) (b) to grant its
approval, may notwithstanding the provisions of section 22, at no additional cost and subject to the provisions of subsection
(1) be submitted anew to the local authority within a period not exceeding one year from the date of such refusal-
(a)
(i)
if the plans, specifications and other documents have been amended in

respect of any aspect thereof which gave cause for the refusal; and
(ii)
if the plans, specifications and other documents in their amended form do not substantially differ from the
plans, specifications or other documents which were originally submitted; or
(b)
where an application is submitted under section 18.’

7 This is a frequently encountered statutory power, see eg Baxter, Administrative Law 376.

unambiguous message. First, the local authority has considered the application.
Second, as a necessary inference from the requirement that certain items must be
attended to before further consideration can be given (my emphasis), it informs the
reader that the local authority does not approve the application as it was submitted for
approval. Third, it furnishes a reason for not approving the application, viz that it does
not comply with the Integrated Development Plan of July 2002. Finally, it opens the door
for reconsideration of the application under s 7(5) by telling the applicant what the local
authority considers necessary to justify reconsideration.
[21] The appellant was careful to bring its notice within the terms of the statute by
setting out the substance of s 7(5). Respondent’s counsel submitted that those were
merely the trappings of a letter in its standard form. Even if that were so, the addressee
would have no ground for such a surmise. The reasonable reader would approach the
note on the assumption that it is relevant to what preceded it. The last sentence of the
letter is also not without significance: return

of the plans is tendered which, in itself, is inconsistent with mere delay or the
avoidance of a decision.
[22] In the circumstances the respondent’s understanding of the notification as merely
communicating an avoidance of the issue or (unwarranted) postponement of the decision
is without justification.
[23] Once it is accepted that the decision communicated to the respondent constituted a
refusal to approve, the question arises why the respondent should have been allowed to
approach the court directly as opposed to first exhausting its remedy of an appeal to the
review board (‘the board’) pursuant to s 9. The only reason advanced on behalf of the
respondent in argument was that the declaratory order sought involved a question of
interpretation of a contract which was antecedent to any decision on the approval of
building plans. Even so, counsel was bound to concede that there was no reason why the
board could not decide the preliminary issue as well. In the circumstances the court a
quo should not, in my view, have entertained the application for the declaratory order. In
the circumstances it is not really necessary to deal with the issues arising from the terms
of the declaratory relief granted by the court a quo. However, lest this court be
understood to endorse the declaratory order, I propose to consider those issues as well.
[24] In amplification of his justification for claiming such relief, respondent’s counsel
drew our attention to correspondence between the parties which preceded the
correspondence in January 2004. He emphasized, rightly, that the council had attempted
to negotiate contributions to its developmental objectives in exchange for concessions by
it in relation to the approval of the parkade and other requirements imposed by the

Gambling Board when amending the licence. The thrust of his submission was that the
council behaved improperly by attempting to extort co-operation in that way. More
important, he submitted, this attitude influenced its recalcitrant and obstructive response
to the respondent’s planning application. This was, so counsel submitted, the reason it
was necessary for the court to examine the council’s reliance on the conflict between the
IDP and the application. Such an examination would, he contended, reveal the
hollowness of its excuse for not approving the application and expose its true motives.
Accepting the premise, this seems to me a justifiable manner of attempting to show that a
so-called ‘refusal to approve’ is in truth a sham which veils a simple refusal even to
consider the application. I propose therefore to adopt counsel’s invitation. Fundamental
to counsel’s reasoning was his submission that the IDP was nothing more than a
conceptual development of the site, lacking detail, which, if it bound the respondent at
all, did so only in the initial stages of the casino development. ‘Times change’, said
counsel, ‘and it could never have been intended that future development of the site
would be hindered by pre-determined planning which would inevitably, with the
development of the casino and changing demands on it, become outdated.’
[25] The appellant’s scheme-in-preparation has the force of law; a local authority is
under a duty to observe and enforce its scheme8; failure to comply with its terms is a
criminal offence9; the scheme clauses which regulate a particular zoning are incorporated
in the scheme and become likewise enforcible. In the present instance clause 8
specifically prohibits the erection of buildings in the special zone unless they are in

8 See definition of ‘town planning scheme’ in s 1 of the Town Planning Ordinance 27 of 1949 (N) read with s 56(1).
9 S 77 of the Ordinance.

accordance with the approved IDP. To that extent, not the IDP as a whole but those of
its provisions which relate to buildings (including those provisions embodied in the text,
plans and drawings) must be taken to be incorporated in the scheme and to have acquired
the status of law for the purposes of interpreting and enforcing clause 8. Indeed counsel
conceded that the provisions of the IDP, so incorporated, would, for this reason, be ‘any
other applicable law’ within the meaning of that expression in s 7(1)(a), if his submission
were not to be accepted. He also conceded that in such event Jappie J ‘understated’ the
position by describing the IDP as ‘no more than a spatial development framework
prepared by the applicant as a guide for the development of the property’.
[26] There is no vagueness in clause 8. It requires one who intends to erect a building
on the land to have regard to the IDP to ensure that the proposed building conforms with
that planning instrument. That is the law. It does not retreat or become unenforcible if its
substance needs updating or its prescriptions are unduly rigid. In such event a remedy is
at hand in the form of an application to amend the town planning scheme. Nor is there, in
my view, anything vague or hypothetical about the ‘Indicative Site Development Plan’
that forms part of the IDP and which reflects, according to scale, the scope and location
of buildings which are to be erected on the site. The building which the respondent
proposes to erect to house the parkade is not shown and, if erected, it will, as counsel
conceded, take up a part of the site which is depicted as an open parking area on the
Indicative Plan. The open area is laid out in accordance with what is described as the
‘Landscape Master Plan’ and one may deduce from the terms of the IDP that the
relationship between buildings and landscaped areas as shown thereon was regarded as a

matter of some value and importance to the development of the site and that the impact
of the buildings in the development was likewise material to achieving harmony between
the development and its wider geographical setting.
[27] The court a quo was influenced by the absence of provisions in the IDP which
refer expressly to the construction of a parkade. Hence it found that ‘there appears to be
nothing in the IDP which either prohibits or permits for town planning purposes the
construction of the proposed parkade’. That is why the learned judge granted the
declaratory relief in the negative form that the applicant’s counsel proposed. But he erred
in that approach. Clause 8 required him to find positively that the proposed building ‘is
in accordance with the IDP’ before it could be said that the planning application
complied with the provisions of the scheme. Because it was not possible to make that
finding, he should have refused the declaratory relief in so far as it related to the IDP.
[28] In the answering affidavit, the council’s building control officer, Mr Graham de
Kock, drew attention to the non-compliance with clause 8 and to the Indicative Site
Development Plan. He was obviously correct in saying that ‘until such time as the IDP
has been amended, the Respondent is precluded by law from approving the plans’.
[29] In so far as the declaration of rights raised the subject of clause 15.2 of the deed of
sale (a matter totally irrelevant to the application for approval of the planning application
under s 7 of the Act) the respondent is no doubt correct that the submission or approval
of the planning application would not constitute a breach of those terms. The provision
of parking on the site was a purpose which the council had, in its previous negotiations
considered to be ancillary to the primary uses of the site. It was also so treated in the

IDP. Before us counsel for the appellant did not seek to contend otherwise. (No-one
drew attention to clause 15.1 which seems in terms to equate to scheme clause 8: a
contravention of the last-mentioned would almost certainly constitute a breach of the
former; but the terms of the declarator were, as I have said, settled by the respondent’s
counsel.)
[30] Counsel for the respondent sought to persuade us that the appellant was influenced
wrongly, in its negative response to the planning application, by its insistence on its
perceived contractual rights under the deed of sale. I have earlier in this judgment
assumed that premise to be correct. However, properly construed, the reference by the
appellant to those rights in the answering affidavit is no more than an explanation for the
stance which it adopted during negotiations between the parties. It pointed out that the
respondent had, without reference to the council, obtained from the Gambling Board
various amendments to its licence which if implemented would change the use of the
property. In terms of the agreement such a change required the council’s approval. It was
therefore permissible for the council to negotiate a quid pro quo for its consent. That
seems neither an untenable nor unreasonable attitude for it to have taken. But the council
did not, in its answering affidavit, provide any basis for the submission that that view
influenced its decision to refuse the planning application. The inference which counsel
sought to draw remains speculative.
[31] In the result the appeal succeeds. The success achieved by the respondent in the
court a quo was insufficient to influence the costs order in that court, particularly having
regard to the stage at which the declaratory relief was first sought. In this court the

respondent had no success of any consequence and it should therefore pay the costs of
the appeal.
[32] The following order is made:
1.
The appeal succeeds with costs including the costs of two counsel.
2.
The order of the court a quo is set aside and replaced by the following:
‘The application is dismissed with costs, including, to the extent that two counsel
were employed, the costs consequent upon such employment.’

___________________
J A   HEHER

JUDGE OF APPEAL

HOWIE P
)Concur
BRAND JA
)
MUSI AJA
)
THERON AJA
)

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:
Wednesday 28 March 2007
Status:
Immediate

On 28 March 2007 the Supreme Court of Appeal handed down judgment in eThekwini
Municipality v Tsogo Sun Kwazulu-Natal (Pty) Ltd (Case no 86/2006).

The respondent is developing a casino complex on the Village Green site in Durban.
The relationship between the municipality and the respondent is governed by contract
and the townplanning scheme. Both limit the ability of the respondent to erect
buildings on the site unless they are in accordance with ‘an Integrated Development
Plan’ approved for the site.

The provincial Gambling Board approved an amendment to its licence which required
the respondent to construct a parkade. The respondent submitted a building plan to the
municipality in terms of s 4 of the National Building to allow it to do so. The
municipality did not approve the building application. The respondent contended that
its notification demonstrated neither approval nor a refusal to approve and that the
municipality was merely avoiding a decision in order to force it to agree to other
development concessions in exchange for approval. The Durban High Court agreed.

On appeal the SCA found that the notification by the municipality constituted an
unequivocal refusal to approve the building application under s 7(1) of the Act. The
respondent had therefore been bound to exhaust the appeal remedies provided by s 9
of the Act before approaching the court. The SCA also found that the erection of the
parkade on the site was in any event not provided for in the IDP and the municipality
was accordingly prohibited by the zoning conditions from approving the building
application.

The appeal was upheld with costs.
--ends--