‘Pay back the money’ says HCM
Hibiscus Coast has been awarded costs from the start of the case up to the Supreme Court appeal.
LEGAL fees adding up to more than R750 000 are what Hibiscus Coast Municipality is planning to recover from Ramsgate property owner Trevor Turnbull-Jackson.
These are the costs the municipality incurred during the 11-year legal wrangle over a sea view that ended in the Constitutional Court last year.
The protracted dispute was between Trevor and Sharon Turnbull-Jackson and Pearl Star Investments CC, together with Hibiscus Coast Municipality. It goes back to October 2003 when Pearl Star submitted building plans for a six-storey development on Lot 3371, Margate. This property is next door to the Turnbull-Jackson’s Beachcomber Bay Guest House.
The plans were approved but approval was set aside on appeal. By then the developer had commenced construction. In 2005, a second set of plans was lodged, this time for two three-storey blocks. In spite of an objection from the Turnbull-Jacksons, the plans were approved by the former head of the municipality’s planning department, Johann van der Walt. Mr Turnbull-Jackson launched a court appeal against this decision and the approval of the plans was again set aside.
In 2007, after the third and final set of plans received approval, Mr Turnbull-Jackson obtained an undertaking from Pearl Star to halt construction until an internal appeal was concluded. When the appeal was dismissed, Mr Turnbull-Jackson went back to court.
In seeking the application to review and set aside the approval of the 2007 plans, he said Mr van der Walt should have recused himself from the decision making, claiming Mr van der Walt was biased against him. Judge J Sishi found there was no demonstration of this bias. Mr Turnbull-Jackson felt that issues relating to the 2005 plans should have precluded the approval of the 2007 plans and that, as he was not afforded a pre-decision hearing, the decision should be set aside.
He also contended that a substantial derogation in value to his property would occur should the construction, which would partly block his sea view, go ahead. Other grounds put forward in favour of the review application included alleged non-compliance with the Building Standards Act, the National Environment Management Act and Margate Town Planning Scheme. Judgement was reserved until October 2012 when Judge Sishi dismissed the review application, with costs.
In his judgement, Judge Sishi described Mr van der Walt’s decision to approve the 2007 plans as ‘reasonable and rational’. The Turnbull-Jacksons then took their dispute to the Constitutional Court last year after the Supreme Court of Appeal, South Africa, dismissed with costs their application for leave to appeal Judge Sishi’s decision.
In September last year the Constitutional Court found in favour of the Hibiscus Coast. In a report submitted to Hibiscus Coast executive committee by municipal manager Max Mbili last week, he noted that the legal costs incurred in the course of litigation from the start of the case right up to the Supreme Court of Appeal had been awarded to the municipality.
Seethal Attorneys had been asked to provide a report detailing the total legal costs , the main focus being what would be recoverable from Mr Turnbull-Jackson. Mr Mbili reported that the firm of attorneys had returned an account of the legal costs incurred by the municipality. According to the report, the total recovery amount due and payable by Mr Turnbull-Jackson was R750 708, 08.
Mr Mbili also noted that, in the event of any resistance regarding the payment of this sum from Mr Turnbull-Jackson, the municipality would be at liberty to attach his property in execution of judgement to realise the costs.
The executive committee agreed to recommend that Larry Seethal of Seethal Attorneys would submit monthly reports regarding the matter. This would be monitored by the head of corporate service, Nelisiwe Thabatha.
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