PAJA AND BUILDING PLANS
Administrative law – Building plans – Refusal of approval by municipality – Refurbishment of petrol station – Error of law in applying Town Planning Scheme – Promotion of Administrative Justice Act 3 of 2000, s 6(2)(d).
Malanda v Umzimkhulu Municipality  ZAKZPHC 57 at -
Facts: After 35 years, the petrol station was looking degraded, so the applicants decided to refurbish it and got a specialist architect to draw up plans for the improvements. After correspondence with the municipality for approval, the applicants received a letter that the building plans had not been approved and mention was made of non-compliance with the uMzimkhulu Town Planning Scheme.
Application: Seeking an order that the municipality approve the plans, alternatively to review and set aside the decision not to approve the plans.
Discussion: The final letter and the reasons for the refusal; section 11 of the Town Plan Planning Scheme relied on by the municipality; the conditions around access to a major traffic arterial road; that the plans are for a pre-existing service station; and the meaning of the word “extend” as used in section 11.
Findings: That the final letter constituted a decision to refuse the plans. Nothing that the applicants propose in their application could properly be construed as an extension of the petrol service station. The Scheme was not applicable and building was an extant service station that was not being extended. The municipality made an error of law and the decision falls to be reviewed and set aside in terms of section 6(2)(d) of the Promotion of Administrative Justice Act 3 of 2000.
Order: The decision to refuse to approve the building plans is reviewed and set aside and the matter is remitted to the municipality for reconsideration. In terms of section 8(1)(c)(i) of PAJA it is not to regard the refurbishment as an extension as contemplated by section 11 of the Scheme and is not to decline the plans because the station enjoys bi-directional access to the R56. The municipality must render its decision within 21 days.
HOSTILE WITNESS AND HEARSAY EVIDENCE
Criminal law – Evidence – Hearsay – Admission – Hostile witness – Probative value of previous inconsistent statement – Law of Evidence Amendment Act 45 of 1988, s 3(1)(c).
Classen v State  ZASCA 130 at -
Facts: Mrs Shortridge was driving her car with two passengers when she noticed a car with two occupants alongside. A firearm was pointed, she heard a shot and one of her windows was shattered. She and one passenger fled the car, leaving the deceased sitting in the rear. She watched as the driver of the other car got out and opened the rear door of her car and she heard two more shots. Two days after the incident Ms Shortridge made a statement that the two appellants were the persons who shot the deceased.
Appeal: Against the convictions in the High Court for murder and unlawful possession of a firearm and ammunition.
Discussion: That as a result of a recantation by Mrs Shortridge, the prosecutor had her declared a hostile witness, allowing the State to cross-examine her; that she said that she named the two appellants because of the pressure brought to bear on her by the deceased’s family and friends; whether the High Court was correct in convicting the appellants on Mrs Shortridge’s recanted statement; and the acceptance of hearsay evidence in the interests of justice in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.
Findings: The probative value of Mrs Shortridge’s statement was crucial. The High Court attached too much weight to the statement and committed a misdirection. Her testimony showed that the statement was not made to ensure that justice prevailed, but because of the unbearable pressure heaped on her shoulders for two days to implicate the appellants.
Order: The appeal is upheld and the order of the High Court replaced with one acquitting both accused of all three counts.
MUSI AJA (MAKGOKA JA, MABINDLA-BOQWANA JA, MAKAULA AJA and GOOSEN AJA concurring.)
INSOLVENCY AND ATTORNEY’S TRUST ACCOUNT
Insolvency – Deposit into attorney’s account – Application to set aside – Test whether attorney benefits or not – Onus to show solvency on attorney – Insolvency Act 34 of 1926, s 26(1)(b).
Van Wyk Van Heerden Attorneys v Gore NO  ZASCA 128 at -
Facts: Three deposits were made from the account of Brandstock Exchange (Pty) Ltd to the trust accounts of attorneys. Brandstock was later provisionally and then finally wound up. The deposits attracted the attention of the liquidators, who contended that the deposits were dispositions and sought to have them set aside in terms of s 26(1)(b) the Insolvency Act 24 of 1936.
Appeal: Against the findings of the High Court that the deposits were dispositions and setting them aside. The attorneys were ordered to pay R1,525,000 to the liquidators.
Discussion: That the sole director of Brandstock was one Mr Philp and that the attorneys acted for him; that the attorneys were unaware of the source of the deposits into their account; the material facts of the application; the characteristics of trust accounts held with banks; that attorneys operate on their trust accounts as principals and not as agents; and that at the heart of section 26(1)(b) is the requirement that the party to whom the disposition was made is put to the proof that “immediately after the disposition was made, the assets of the insolvent exceeded his liabilities”.
Findings: The person to whom the disposition is made for the purpose of section 26(1)(b) must have benefited from it. Regarding the deposit of R1,25 million, the attorneys acted as a conduit in the onward transmission of the funds. Since the attorneys did not benefit, they did not attract the onus to show the solvency of Brandstock immediately after the deposit was made. The deposit into their account was not a disposition to the attorneys and was thus not impeachable under s 26(1)(b). Regarding the other two deposits, the attorneys made them part of their assets when they appropriated them to settle their fees and pay disbursements incurred on behalf of their clients. As such, they clearly benefited from the deposit of those two amounts. This despite their not having breached the principles governing the operation of the trust account.
Order: The appeal is upheld relating to the largest deposit and the order is amended such that the two other deposits are declared dispositions without value. The attorneys are ordered to pay the liquidators R275,000.
GORVEN JA (VAN DER MERWE JA, MAKGOKA JA, GOOSEN AJA and MASIPA AJA concurring.)
ABOUT THE EDITOR
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