THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 940/18

In the matter between:

KWADUKUZA MUNICIPALITY
APPELLANT

and

LAHAF (PTY) LTD
RESPONDENT

Neutral Citation:
KwaDukuza Municipality v Lahaf (Pty) Ltd (840/18)
[2020] ZASCA 09 (18 March 2020)
Coram:
PETSE DP and LEACH, ZONDI, PLASKET and MBATHA JJA
Heard:
12 November 2019
Delivered:
18 March 2020
Summary: Interpretation of a town planning scheme which applies
exclusively to Lifestyle Centre, Ballito – meaning of the phrase 'the total gross
lettable area (GLA) of the Property' – starting point is the language of the
zoning provision which must be construed in the light of its context, the
apparent purpose to which it is directed and material known to those
responsible for its production.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: The KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Chili J sitting as court of first instance):
The appeal is upheld with costs.
The order of the court below is set aside and replaced with the
following order:
‘The application is dismissed with costs.’

______________________________________________________________

JUDGMENT
______________________________________________________________

Zondi JA (Petse DP concurring):

[1] This appeal concerns the interpretation of the words ‘the total Gross
Lettable Area (GLA) of the Property’, in a single zone in a town planning
scheme which applies exclusively to the Lifestyle Centre (Centre) in Ballito,
KwaZulu Natal. The scheme was approved by the appellant, KwaDukuza
Municipality, in 2000. The scheme controls limit the permissible GLA for the
Lifestyle Centre in terms of maximum square metres on the property. The
precise meaning of GLA determines the nature and extent of what can
lawfully be built at the Lifestyle Centre. The dispute is whether the third
restriction in Table D : Density Zone of the current zoning (approved in
November 2011), which refers to ‘the total GLA of the property’, should be
interpreted to mean only the area of ‘shops’ as defined in the scheme clauses
or all areas capable of being leased.

[2] The respondent, Lahaf (Pty) Ltd, contended that the word 'GLA' must
be interpreted to mean only the area of 'shops' as defined in the scheme
clauses, that is to say, the areas let out by the respondent to be used as
shops and all areas used exclusively by a shop tenant. On the other hand, the

appellant contended that 'GLA' comprises all areas notionally capable of
being let including storage areas and receiving yards. In other words, it draws
no distinction between shop and non-shop areas.

[3] The dispute arose in those circumstances. The respondent and two of
its tenants submitted to the appellant building plans for approval but, because
of the disagreement regarding the meaning to be ascribed to 'GLA' the
appellant had not considered the relevant plans. The apparent basis for the
appellant’s stance was its contention that what the respondent had built and
proposes building at the Lifestyle Centre contravenes the limitations imposed
on the property in terms of its zoning controls. The respondent’s position was
that what it had built complies with applicable zoning provisions and scheme
controls and what it intended to build complied or was capable of compliance.
In short, the parties are in dispute as to which built areas in the centre
constitute GLA and which areas do not.

[4] As a result of the disagreement, the respondent, on 27 March 2015,
approached the Kwa-Zulu Natal Division of the High Court, Pietermaritzburg
(the high court) seeking an order that:
It is declared that the term 'GLA' in the zoning controls of Ballito Town
Planning Scheme for Special Zone 10: Lifestyle Centre:
1.1 means ‘gross leasable area’ and relates only to the relevant retail space
for the exclusive use of retail shop tenants;
1.2 excludes uses other than ‘shop’ as defined in the scheme, and other uses
as set out in sub-paras 1.2.1 to 1.2.12;
1.3 is measured according to the formula in the South African Property
Owners’ Association Guide, namely to the centre line of demising walls, to the
inside finished surface of external walls and to the centre line of the shop front
boundary;
1.4 The respondent sought an order directing the appellant to consider the
three sets of the building plans submitted by respondent in the light of the
declared definition of the GLA within 60 days of the order; it further sought an
order that the appellant be ordered to consider all other building plans

submitted to it by the respondent or its tenants in the light of the definition of
GLA also within 60 days of the order.

[5] The high court (Chili J) accepted the respondent’s contention and
granted a declaratory order to that effect. It, among others, directed the
appellant to consider the relevant building plans submitted to it by the
respondent or its tenants in accordance with the declared definition of 'GLA'.
The appellant’s appeal, with leave of this court, is directed at the conclusions
and findings on which the order of the high court is based.

[6] The interpretation of the relevant provision of the zoning control should
be considered in the context of these facts. The Ballito Lifestyle Centre
(Centre) is situated on erven 3671 and 2348 Ballitoville (the property). The
respondent is the registered owner of erf 3671 which it acquired from Paul &
Bruce Investments (Pty) Ltd during July 2009. The Centre is situated within
KwaDukuza Municipality area and falls under the Ballito Town Planning
Scheme.

[7] The individual erven on which the Lifestyle Centre has been built were
all originally part of the Ballito Business Park and zoned variously ‘Activity’,
‘Agricultural’ and ‘Public Open Space’. The controls which applied to the
erven zoned ‘Activity’ prescribed the maximum floor area ratio (FAR) at 1,
coverage of 70% and set a height limitation of 3 storeys. (Paragraph 25). In
terms of the zoning provisions shops were permitted on ‘Activity’ erven by
special consent, but limited to 200 m². This limitation had been removed in
respect of some of the original erven forming part of the Lifestyle Centre
which had been zoned ‘Activity’, but not others.

The creation of Special Zone 10: Lifestyle Centre.
[8] In approximately 2000 the previous owners of the property, Seaward
Estates, submitted an application to the appellant to rezone components of
the property to create Special Zone 10: Lifestyle Centre. This was achieved
by rezoning approximately 4.7 hectares of agricultural land to Activity and by
converting the Activity into the Lifestyle Centre. It was envisaged that the

Special Zone would apply to the Lifestyle Centre. The Lifestyle Centre was to
be different from a conventional shopping centre. It was to include lifestyle
components, such as restaurants, a nursery, large open walkways and water
features alongside conventional retail outlets and service providers such as
the Post Office and Banks. In the rezoning application the Lifestyle Centre
was described as ‘a holistic complex of shops, restaurants and entertainment
facilities which have, in addition to conventional shops, a focus on the outdoor
living and a plant nursery together with recreational and entertainment uses
such as an animal farm, gymnasium/health centres, open air tea gardens and
extensive landscaping’.

[9] It was further stated in the application that the purpose of the rezoning
application was the creation of a larger single site to accommodate a more
holistic shopping/Lifestyle Centre Complex, which could not be developed
over the 12 individual erven as they existed.

[10] The rezoning application proposed certain scheme controls which
would apply to the Lifestyle Centre zone. These introduced the term ‘GLA’ but
unfortunately ‘GLA’ was not defined in the scheme and is still not defined.

[11] The rezoning application was granted and ‘Special Zone 10: Lifestyle
Centre’ was established with its own zoning controls as set out in the following
table:
TABLE C : USE ZONE : ACTIVITY ZONE
USE ZONE

(1)
NOTATION

(2)
PURPOSES FOR WHICH
BUILDINGS MAY BE
ERECTED AND USED

(3)
PURPOSES
FOR WHICH
BUILDINGS
MAY BE
ERECTED AND
USED ONLY
WITH SPECIAL
CONSENT

(4)
PURPOSES FOR
WHICH
BUILDINGS MAY
NOT BE
ERECTED AND
USED

(5)
Special Zone 10
Life
Style
Centre

Agriculture
Arcade or Pedestrian Mall
Arts and Crafts Workshop
Commercial Workshop
Educational Building
Laundrette
Office Building
Place of Public
Crèche
Dwelling House
Funeral Parlour
Motor
Car
Showroom
Municipal
Parking Garage
Public Office
Building and land
uses not included
in Columns 3 and

Amusement
Place of Public Assembly
Private Recreation Area
Recreational Building
Restaurant
Shop
(restricted
to
14000m2gla)
Residential
Building
Service Industrial

TABLE D : DENSITY ZONE

DENSITY ZONE

(1)
MAXIMUM PERMITTED
F.A.R., COVERAGE
AND HEIGHT

(2)
ADDITIONAL CONTROLS

(3)
COLOUR
NOTATION ON
SCHEME MAP

(4)
Special Zone 10
Life Style Centre
1:70:3
1. Accommodation of motor
vehicles to be provided on the
lot as per Clause 6.4
2. Subject to the provision of a
sewage disposal system to the
satisfaction
of
the
Local
Authority
3. Total floorspace shall not
exceed 25000m2gla

[12] As the above schedules demonstrate the adopted scheme controls
comprised Table C and Table D. Table C dealt with permitted use of space
and Table D dealt with density controls. (This you would find at page 87 of the
record). In terms of Table C a maximum of 14 000 m2 of GLA could be used
for shops. In terms of Table D the permitted GLA for total floor space was
25 000 m2.

The second amendment to the zoning.
[13] Again during July 2005 the former owners of the property submitted an
application pursuant to s 47 of the Town Planning Ordinance, 27 of 1949 to
amend the scheme controls applicable to Special Zone 10 so as to increase
the maximum permitted GLA allowed for shops from 14 000 m² to 25 000 m²
and remove the restriction on total floor space of 25 000 m² GLA in Table D.
This application was granted on 17 October 2005 (p 95).The Council of the
appellant resolved that the application for the proposed scheme amendment
be approved as follows:
'1.
PROPOSED REZONING OF ERVEN 2334, 2335 and 2336 BALLITOVILLE,
DOUGLAS CROWE PLACE, BALLITO BUSINESS PARK FROM "ACTIVITY ZONE"
TO "SPECIAL ZONE '10' LIFESTYLE CENTRE" PURPOSES; AND

2.
PROPOSED AMENDMENT TO "TABLE D : DENSITY CONTROLS" AS
APPLICABLE TO THE "SPECIAL ZONE 10' LIFESTYLE CENTRE" BY
INCREASING THE 'GROSS LEASEABLE AREA (GLA)" IN RESPECT OF "SHOP"
TO 25 000 SQUARE METERS AND BY DELETING "ADDITIONAL CONTROL 3"
WHICH LIMITS THE TOTAL FLOOR SPACE TO 25 000 SQUARE METRES GLA.'
As a result of the amendment Table C and Table D were amended in the
following manner:

TABLE C : USE ZONE : SPECIAL ZONE 10 : LIFESTYLE CENTRE
Use Zone

(1)
Notation on
scheme map

(2)
Purposes for which
buildings may be erected
and used

(3)
Purposes for
which buildings
may be erected
and used only
with special
consent

(4)
Purposes for
which buildings
may NOT be
erected and used

(5)
Special Zone 10
Lifestyle Centre
Red Cross
Hatch
Agriculture
Arcade or Pedestrian Mall
Arts & Crafts Workshop
Commercial Workshop
Educational Building
Laundrette
Office Building
Place of Public
Amusement
Private Recreation Area
Recreational building
Restaurant
Shop
Restricted to 25000m2 GLA

Building and land
uses NOT
included in
Columns 3 and 4

TABLE D : DENSITY ZONE: SPECIAL ZONE 10: LIFESTYLE CENTRE

Density Zone

(1)
Maximum permitted
F.A.R., Coverage and
height

(2)
Additional Controls

(3)
Colour notation on
scheme map

(4)
Special Zone 10
Life Style Centre
1:70:3
1. Accommodation of motor
vehicles to be provided on the
lot as per Clause 6.4
2. Subject to the provision of a
sewage disposal System to the
satisfaction
of
the
Local
Authority
3.
Total
Floor
Space
be
restricted to 25000m2

It is apparent from Table D that, as from 17 October 2005, a reference to GLA
in para 3 in the third column was omitted following the amendment.

The third amendment to the zoning.
[14] During October 2007, the respondent submitted a further application to
amend scheme controls applicable to Special Zone 10: Lifestyle Centre to
increase the total floor space from 25 000m² to 28 000m². At the time the
respondent sought an additional space to enable it to construct a gym and
lease that area to Virgin Active Gym. The Virgin Active Gym did not constitute
a shop in terms of the scheme clauses. On 4 June 2008 the executive
committee of the appellant resolved to increase the permitted GLA from
25 000m² to 28 000m². But for some other reason, the appellant erroneously
amended the scheme controls by increasing GLA rather than the floor area.
This error was, however, subsequently rectified by the municipal officials on 3
September 2008 to reflect that what was increased was the total floor area
from 25 000m² to 28 000m² not GLA. Again a reference to GLA in Column 3,
para 3 of Table D was omitted. The result of the amendment was that Tables
C and D were amended as follows:

TABLE C : USE ZONE : SPECIAL ZONE 10 : LIFESTYLE CENTRE
Use Zone

(1)
Notation on
scheme map

(2)
Purposes for which
buildings may be erected
and used

(3)
Purposes for
which buildings
may be erected
and used only
with special
consent

(4)
Purposes for
which buildings
may NOT be
erected and used

(5)
Special Zone 10
Lifestyle Centre
Red Cross
Hatch
Agriculture
Arcade or Pedestrian  Mall
Arts & Crafts Workshop
Commercial Workshop
Educational Building
Laundrette
Office Building
Place of Public
Amusement
Private Recreation Area
Recreational building
Restaurant
Shop
Restricted to 25000m2 GLA

Building and land
uses NOT
included in
Columns 3 and 4

TABLE D : DENSITY ZONE: SPECIAL ZONE 10: LIFESTYLE CENTRE

Density Zone

Maximum permitted
F.A.R., Coverage and
height

Additional Controls

Colour notation on
scheme map

(1)
(2)
(3)
(4)
Special Zone 10
Life Style Centre
1:70:3
1. Accommodation of motor
vehicles to be provided on the
lot as per Clause 6.4
2. Subject to the provision of a
sewage disposal System to the
satisfaction
of
the
Local
Authority
3.
Total
Floor
Space
be
restricted to 28000m2

The fourth amendment to the zoning.
[15] During June 2011, the respondent applied for a further amendment of
the zoning controls. The respondent sought to delete the restriction (restricted
to 25 000 m2 GLA) in Table C in so far as it applied to the total shop GLA and
remove condition 3 in Table D limiting total floor space (total floor space
restricted to 28 000 m2). In para 3.3 of the application the respondent
explained the purposes of the amendment:
'The proposed amendments referred to in paragraph 3.1 above, therefore entails the
deletion of the current "Shop" and "Total Floor Space" restriction, as tabulated in
paragraph 3.2 above. The density parameters will then simply be applied
conventionally, being the maximum permitted F.A.R., Coverage and Height, as
tabulated in "Table D: Density Zone: Column 2 of Special Zone 10: Lifestyle Centre",
being 1 : 70 and 3 respectively.'

[16] On 19 October 2011, Mr FG van der Merwe, a Registered Planner,
prepared a valuation report on behalf of the appellant. According to Van der
Merwe the purpose of the application was ‘to seek Council’s consideration for
an application brought in terms of the Act, for the removal of a restriction. The
ultimate purpose being to amend the current “Table C : Use Zone and Table
D: Density Zone” as they apply to the “Special Zone 10: Lifestyle Centre”,
to . . . permit an increase in the Gross Leasable Area (GLA) applicable to the
Property…’

[17] Under the heading ‘Evaluation’ Van der Merwe set out the following
background:
'Evaluation
During July 2005, an application was submitted by Paul & Bruce Investments (Pty)
Ltd to rezone certain components of the [applicant’s] Property to "Special Zone 10 :

Lifestyle Centre" purposes, as well as to increase the maximum permitted G.L.A.
(gross leasable area) of "shop" from 14000m2 to 25000m2. The said application
further proposed the deletion of the total floor space requirement of 25000m2 G.L.A.
The above application was approved by the Municipality and subsequently became
the subject of an appeal in terms of Section 47 bis C of the Town Planning Ordinance
(Ordinance No. 27 of 1949). The Provincial Planning and Development Commission
subsequently resolved to dismiss the appeal brought by the appellants, thereby
giving effect to the KwaDukuza Council decision, with amended controls in Table C
and Table D.
As mentioned above, the previous application submitted by Paul & Bruce
Investments (Pty) Ltd was (apart from rezoning certain components of the application
property) to increase the maximum G.L.A. for "shop" from 14000m2 to 25000m2 as
well as to delete . . .  the total floor space requirement of 25000m2 G.L.A. The
restriction placed on the maximum G.L.A. for "shop" has, since the introduction of the
"Special Zone 10 : Lifestyle Centre" into the Ballito town planning scheme clauses,
been an additional control with specific reference to "shop" only.
Resulting from the resolution taken by the Provincial Planning and Development
Commission, referred above, not only buildings erected for "shop" use, but the total
development of the Property was restricted to 25000m2. During October 2007 the
Applicant had to again submit an application to amend the scheme, with specific
reference to "Special Zone 10 : Lifestyle Centre", to increase the total floor area from
25000m2 to 28000m2. Such application was approved during September 2008.
Generally, the purposes for which buildings may be erected and used in "Special
Zone 10 : Lifestyle Centre", other than "shop" ought to be restricted by the maximum
permitted F.A.R. of 1, Coverage of 70% and Height of 3 storeys. The latter principle
applies to all adjoining erven situated within the Ballito Business Park, zoned for
"Activity" purposes. This principle also applied to the Property, prior to its initial
rezoning during the year 2000.
It is the Applicant's intention to further develop the Ballito Lifestyle Centre in the near
future and therefore this application for the removal of the mentioned additional
controls, hereby simplifying the development controls applicable to the Property.'

[18] After setting out how the respondent’s zoning scheme had developed
over the years and the proposed amended development controls sought by
the respondent, Van der Merwe went on to state:

'The concerns raised by the Objector, as well as the KZN Department of Transport
are shared, in the sense that traffic impact is a major consideration along the MR 398
and MR 445. The Lifestyle Centre was not ever intended to become a conventional
centre with conventional town planning controls and it is therefore submitted that
some form of additional control be maintained to limit the total G.L.A. of the Centre
until such time as the larger central business area has been re-evaluated in terms of
the Kwadukuza Scheme review process.
It is also important that further controls be introduced to control future expansions to
the Lifestyle Centre, in the context of the Department of Transport's as well as
Municipality's future road and public transport upgrading initiatives.
The Applicant was requested to provide a detailed site development plan, depicting
the actual areas of expansion required. Attached hereto, marked C, is a detailed site
development plan as referred to above, which depicts the areas of extension
envisaged by the Applicant in the short to medium term. It is submitted that
consideration can be given to logical and minor extensions to the current G.L.A., but
limited to the current anchor tenants. Such minor extensions should be limited to. No
more than 20% of the current G.L.A. per anchor tenant shopping unit and aimed at
the creation of storage space as well as a more functional shop layout. Such
extensions should also be limited to the southern and south western parts of the
Centre, thereby not creating the opportunity for further self contained shopping units,
resulting in a further impact on the current access and parking situation.
Based on the above, it is submitted that the proposed extension to Woolworths, Spar
as well as the administration unit of the Centre be supported. The proposed
extension to Mica is substantial and not considered appropriate in the context
outlined in the paragraph above. It is therefore recommended that consideration be
given to an additional G.L.A. of 3000m2 only.' (My own emphasis.)

[19] After evaluating the application Van der Merwe made the following
recommendation:
'RECOMMENDATION
RESPONSIBLE OFFICIAL
1.
That based on the information provided above, as well as the Applicant's
response to the objection raised, the application in terms of Chapter 6 [Section 65(1)
thereof] of the KZN Planning & Development Act (Act no. 6 of 2008), for the removal
of restrictions be APPROVED but subject to the following underlined amendments to
"Special Zone 10: Lifestyle Centre":

TABLE C : USE ZONE : SPECIAL ZONE 10 : LIFESTYLE CENTRE
USE ZONE

(1)
NOTATION
ON
SCHEME
MAP

(2)
PURPOSES FOR WHICH
BUILDINGS MAY BE
ERECTED AND USED

(3)
PURPOSES
FOR WHICH
BUILDINGS
MAY BE
ERECTED AND
USED ONLY
WITH SPECIAL
CONSENT

(4)
PURPOSES FOR
WHICH
BUILDINGS MAY
NOT BE
ERECTED AND
USED

(5)
Special Zone 10
Lifestyle Centre
Red Cross
Hatch
Agriculture
Arcade or Pedestrian  Mall
Arts & Crafts Workshop
Commercial Workshop
Educational Building
Laundrette
Office Building
Place of Public
Amusement
Private Recreation Area
Recreational building
Restaurant
Shop

Crèche
Dwelling House
Funeral Parlor
Motor Car
Showroom
Municipal
Parking Garage
Public Office
Residential
Building
Service Industrial
Building and land
uses NOT
included in
Columns 3 and 4

TABLE D : DENSITY ZONE : SPECIAL ZONE : LIFESTYLE CENTRE
DENSITY ZONE

(1)
MAXIMUM
PERMITTED F.A.R.,
COVERAGE &
HEIGHT
(2)
ADDITIONAL COTROLS

(3)
COLOUR NOTATION
ON SCHEME MAP

(4)
Special Zone 10
Lifestyle Centre
1 : 70 : 3
1. Accommodation of motor
vehicles to be provided on the
lot as per Clause 6.4
2. Subject to the provision of a
sewerage disposal system to
the satisfaction of the Local
authority.
3. The total G.L.A. of the
Property
be
restricted
to
31 000m2 and no development
exceeding 28 000m2 of G.L.A.
will be permitted unless prior
approval has been given by
both the Municipality as well as
the KZN Provincial Department
of Transport; of a Traffic Impact
Assessment, which is to be
undertaken at the cost of the
owner.
That
the
further
extensions be limited to those
areas indicated on the plan –
(ref: 0309 100/3) attached to
the
EDP
October
2011
Agenda.
The
proposed
extension to the Mica shopping
unit, as shown on the said plan
is not supported.
Red cross hatch

2.
That both the Applicant as well as the Objector be informed of their rights to
Appeal in terms of the provisions of the KZN Planning & Development Act (Act no. 6
of 2008).
3.
. . . .'

[20] The appellant adopted Van der Merwe’s recommendation and passed
a resolution to that effect. The appellant’s decision granting the application to
amend the scheme controls was communicated to Helena Jacobs, the
respondent’s Town and Regional Planner, on 14 November 2011.

[21] To sum up, the following controls applied before and after they were
amended in November 2011.Under Table C the maximum GLA for the
building erected and used as a shop was 25 000 m2 and in Table D the floor
space restriction of 28 000 m2 applied. The purpose of the application was to
remove the restriction of shop GLA of 25 000 m2 in Table C and to remove the
floor space restriction of 28 000 m2 in Table D. The respondent needed
additional space to extend Woolworths, Spar, Administration Unit and Mica.
The application was considered by Van der Merwe on behalf of the appellant.
He prepared a report for the appellant. It is significant to note that in his report
Van der Merwe pertinently stated that the restriction placed on the maximum
GLA for ‘shop’ has since the introduction of the ‘Special Zone 10: Lifestyle
Centre’ into the Ballito town planning scheme clauses, been an additional
control with specific reference to ‘shop’ only which confirms that the GLA has
always been associated with ‘shops’.

[22] Mr van der Merwe suggested that logical and minor extensions to
current GLA of 25 000 m2 be granted but by no more than 20 percent of
25 000 m2. His suggestion accordingly was that the GLA be extended by
5000 m2 to 30 000 m2. He, however, recommended that the application be
approved subject to certain conditions to be included in Table D, additional
control 3, in order to address the concerns raised by a certain objector.
Instead of increasing the GLA to 30 000 m2 he recommended that it be
increased to 31,000 m2 but that the consent of the appellant and the provincial
Department of Transport be obtained for any development exceeding

28 000 m2. His recommendation was that the restriction of shop GLA of
25 000 m2 in Table C be removed.

[23] This analysis provides the context, the purpose of the amendment of
the controls and the background to their amendment in the light of which they
should be construed.

[24] In the high court the appellant submitted that when the zoning was
changed in November 2011 Table C was amended to remove the restriction
on GLA of ‘shop’. It argued that Table D was amended to limit the total GLA of
the Centre, and to introduce controls relating to traffic and where expansion
might take place. The appellant contended that it was only in Table C (which
deals with use zone) that GLA relates to premises used as ‘shop’. The
appellant argued that Table D (which deals with density) never distinguished
between shop and non-shop space, or between types of use at all. The
appellant argued that prior to September 2005 and since November 2011
Table D fixed permissible density by reference to the GLA of the total
property, between those dates it was fixed with reference to total floor area.

[25] The high court rejected the construction contended for by the appellant
that GLA means anything whether it is lifestyle component or retail type
component. The high court held that it was satisfied that, based on the
correspondence exchanged between the parties’ legal representatives and in
particular the letter addressed to the appellant's attorneys of record by the
respondent's attorneys on 24 August 2012, the parties had by their conduct
understood the term GLA to refer to shop space. The high court accepted the
construction contended for by the respondent on the grounds, first, that it was
consistent with the manner in which the parties had implemented the zoning
provisions, as reflected in the correspondence exchanged between the
parties’ attorneys. Secondly, that the interpretation contended for by the
respondent advanced the purpose of the scheme. This holding was based on
the reasoning that, if it were to adopt the construction of GLA contended for
by the appellant that would result in uncertainty, because such interpretation
would render the meaning of GLA elastic. Finally, the high court held that the

interpretation of GLA contended for by the respondent had to be preferred to
that of the appellant as it would avoid absurdity and unconstitutionality. The
high court accordingly granted an order in terms of prayers 1.1; 1,2; 1.3; 2 and
3 of the notice of motion.

[26] Before this court counsel for the appellant submitted that the words ‘the
total GLA of the Property’ do not mean only the GLA of shops if the words are
given their ordinary meaning, in the light of the ordinary rules of grammar and
syntax. He argued that it was not contextually or purposively possible to
ascribe a special meaning or different meaning to the words ‘the total GLA of
the property’ so as to make them mean ‘the GLA of shops only’.

[27] One is required to interpret the zoning provisions in accordance with
the principles enunciated in recent cases such as KPMG1, Endumeni2,
Bothma-Batho3 and Dexgroup4. The approach to interpretation of written
instruments, be they contracts or statutes is usefully summarized thus in
Dexgroup para 16:
‘…These cases make it clear that in interpreting the starting point is inevitably the
language of the document but it falls to be construed in the light of its context, the
apparent purpose to which it is directed and the material known to those responsible
for its production. Context, the purpose of the provision under consideration in the
background to the preparation and production of the document in question are not
secondary matters introduced to resolve linguistic uncertainty but are fundamental to
the process of interpretation from the outset’.

[28] Having regard to the context in which the words are used, the purpose
to which they are directed and how their inclusion in Table D of Special Zone
10 came about, I conclude that the words ‘the total GLA of the property’
should be interpreted to comprise areas leased out by the respondent to be
used as ‘shop’ and all the areas used exclusively by the shop tenant. My

1 KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA)
paras 29-40.
2 Natal Joint Municipal Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
3 Bothma-Batho Transport 2014 (2) SA 494 (SCA) para 12.
4 Dexgroup Pty Ltd v Trustco Group International (Pty) Ltd [2013] ZASCA 120; [2014] (1) All
SA 375(SCA).

conclusion is based on the following. First, it is apparent from the history of
the Lifestyle Centre that the whole purpose of its design was to create a mix
of uses and was to include lifestyle features such as restaurants, a nursery,
large open walkways and water features and service providers such as the
Post Office and banks. In terms of the design, the Lifestyle Centre was to be
different from a conventional shopping centre dominated by retail outlets. The
whole purpose of creating the Lifestyle Centre would be defeated if GLA was
not confined to shops, because, on the appellant’s interpretation of GLA, all
lifestyle features such as restaurants, nurseries, animal farms, a gymnasium,
open air tea gardens and an open air theatre would fall within the definition of
GLA, because notionally they are capable of being leased out. The result is
that lifestyle features and service providers such as the banks and Post Office
would compete with shops for permissible space which could lead to a
situation where there would be no lifestyle features or service providers,
because all GLA will be taken up by shops. This would undermine the whole
notion of a Lifestyle Centre as conceived by the respondent from the outset.

[29] Secondly, if regard is had to the conduct of the parties both before and
immediately after the amendment of the zoning provisions in November 2011
it is apparent that both parties understood GLA as comprising shop retail
space and this position is reflected in the correspondence exchanged
between the parties’ legal representatives.5 Additionally in his evaluation
report dated 19 October 2011 Van der Merwe stated that ‘the restriction
placed on the maximum G.L.A. for “shop” has, since the introduction of the
“Special Zone 10 : Lifestyle Centre” into the Ballito town planning scheme
clauses, been an additional control with specific reference to “shop” only.’ This
approach is justified in this matter because this practice provides evidence
which demonstrates that for a period of time both the appellant and the
respondent shared a common understanding that GLA only relates to retail
space.6

5 Commissioner, South African Revenue Services v Bosch [2014] ZASCA 171; 2015 (2) SA
174 (SCA) para 17.
6 Marshall NO v Commissioner for the South African Revenue Service [2008] ZACC 11; 2019
(6) SA 246 (CC) para 10.

[30] That both parties understood that GLA relates only to 'shop' is further
demonstrated by the following instances. Firstly, during 2006 in an appeal by
a third party to the Provincial Planning and Development Commission against
changes to the zoning provisions, the appellant's legal representatives
submitted written argument defending its decision to grant an application to
amend the zone controls by increasing the GLA from 14 000 to 25 000 m2 and
removing a total floor space restriction. The appellant argued that the increase
in GLA in respect of shops did not give the respondent a blank cheque for
development because the proposed development would still be subject to
floor area ratio ('FAR'), coverage and height restrictions. The extent of the
property exceeds 69 000 m2, leaving a balance above the GLA limit of
25 000 m2, which applied at the time, of more than 44 000 m2. It would be
absurd to suggest that the appellant's legal representative was contending
that 44 000 m2 would constitute areas that could not be let out at all.

[31] Secondly, during December 2008, the appellant approved the as-built
plans for the second phase of the development of the Lifestyle Centre. At that
time, the limit on GLA was 25 000 m2. In respect of those plans the
respondent had calculated GLA on its interpretation and the appellant's
current interpretation. On the appellant's current interpretation, GLA per that
plan was 24 874 m2 excluding the area occupied by the nursery. At that stage,
the nursery measured 2 751 m2. Had the nursery been taken into account by
the appellant in calculating GLA, the appellant could never have approved the
plans for phase 2 (as it did) because GLA, on its current version, would have
been 27 625 m2 when the limit was 25 000 m2. The appellant now contends
that, because a nursery is capable of being let out, it falls to be included in
GLA (despite having earlier admitted that a nursery was a lifestyle
component). If this was the case, the appellant could never have approved
the plan during December 2008.

[32] To sum up, bearing in mind that when the amendment was sought in
June 2011 the shop GLA restriction of 25 000 m2 applied, it is quite
inconceivable that the words ‘the total GLA of the Property’ appearing in Table
D, additional control 3 were intended to apply to all areas - shop and non-

shop areas- at the Centre. If it were so, it means that there would be no more
space for accommodating lifestyle features and service providers at the
Centre which in terms of the scheme clauses are excluded from the definition
of ‘shop’.

[33] The next question is what uses at the Lifestyle Centre should be
excluded from the definition of 'shop' for the purposes of zoning controls. In
terms of scheme clauses 'shop' "means a building or land used for any retail
trade or business wherein the primary purpose is the selling of goods and
appliances by retail and includes a building used for the purpose of a
hairdresser, ticket agency, showroom (including motor showroom restricted to
the display and sale of vehicles only), auction mart or for the sale of food and
drink for consumption off the premises or for the reception of goods to be
washed, cleaned, altered, dry-cleaned or repaired and includes ancillary
buildings ordinarily incidental to the conduct of the retail business, but does
not include an industrial building, garage, service station, milk depot or hotel".
I did not understand counsel for the appellant to dispute that the definition of a
'shop' excludes all uses as set out in paras 1.2.1 to 1.2.12 of the notice of
motion. In these circumstances there existed no legal basis for the appellant
to have refused to consider the building plans submitted to it by the
respondent and two of its tenants.

[34] What remains to be considered is the relief. The high court granted the
relief sought in prayers 1 to 4 of the notice of motion. In terms of paragraph 2
of the order, the appellant was directed to consider building plans concerned
in terms of the declared definition of GLA and make decision within 60 days of
the grant of the order. In paragraph 3 the high court ordered the appellant to
consider all other building plans submitted to it by the respondent or its
tenants in the light of the declared definition of GLA and make a decision
within 60 days from the date of the submission of such plans to the appellant.
In my view paragraphs 2 and 3 of the order should be amended in line with
s 7 of the National Building Regulations and Building Standards Act, 103 of
1977 (the Building Standards Act) which governs the process of approving
building plans. In terms of s 7 of the Building Standards Act a local authority

must consider the building control officer’s recommendation made in terms of
s 6. If a local authority is satisfied that the application for approval complies
with the requirements of the Building Standards Act and other applicable law,
it must grant the approval unless it is satisfied that the erection of the building
to which the plans relate will trigger one of the disqualifying factors. In that
event, the local authority must refuse to grant its approval in respect thereof
and give written reasons for such refusal.

[35] It is therefore not necessary to include in paras 2 and 3 of the order a
stipulation directing the appellant to consider the building plans concerned in
the light of the declared definition of GLA.

[36] Had this been the majority judgment, I would have granted an order in
the following terms:
1 The appeal is dismissed with costs including costs of two counsel.
2 Paragraphs [1] 1.1; 1.2 and 1.3 of the order of the high court are confirmed.
3 Paragraphs 2 and 3 of the order of the high court are set aside and replaced
with the following:
'1. The respondent is ordered to consider the building plans submitted to it by
the applicant with plan numbers 12/05/289; 12/08/523 and 13/06/307, and
either approve such plans or properly inform the applicant in writing of the
reason for any refusal, within 60 days of the grant of the order in this matter;
2. The respondent is further ordered to consider all other building plans
submitted to it by the applicant or its tenants and either approve such plans or
properly inform the applicant or the party submitting such plans in writing of
the reason for any refusal, within 60 days of the grant of this order.'

_____________
D H Zondi
Judge of Appeal

Mbatha JA (Leach JA concurring)
[37] I have had the benefit of reading the judgment of my brother Zondi JA
(the main judgment). The main judgment dealt with the interpretation of the

town planning scheme which applies exclusively to the Lifestyle Centre in
Ballito. In the main judgment, Zondi JA found in favour of the respondent in
respect of both issues. I respectfully hold a different view. The crux of the
matter is whether the total GLA of the Ballito Lifestyle Centre should be
interpreted to mean only the area relating to the shops as defined in the
scheme or rather to mean all the retail areas let out by the respondent.

[38] It is apposite that one should understand what is meant by the town
planning scheme before dealing with the interpretation of the term GLA. The
scheme is an essential part of the Town Planning Programme. The
Constitutional Court, in City of Johannesburg Metropolitan Municipality v
Gauteng Development Tribunal & others [2010] ZACC 11; 2010 (6) SA 182
(CC) para 57, aptly described the term municipal planning as follows: ‘the
term [municipal planning] is not defined in the Constitution. But “planning” in
the context of municipal affairs is a term which has assumed a particular, well-
established meaning which includes the zoning of land and the establishment
of townships. In that context, the term is commonly used to define the control
and regulation of the use of land.’

[39] The land management or town planning lies in the hands of the
municipality through the scheme.  The municipality exercises control of the
town planning process through the scheme, hence applications for rezoning
and special consents are to be made. The scheme may therefore be
amended from time to time to accommodate changes in the development of
the town.

[40] This court, in JDJ Properties CC and Another v Umgeni Local
Municipality and Another [2012] ZASCA 186; 2013 (2) SA 3955 (SCA) para
28, stated that the Town Planning Ordinance 27 of 1949 (Kwa-Zulu Natal)
contained  the general purpose of a town planning scheme which is  to
achieve  ‘a co-ordinated and harmonious development of the municipal area  .
. . in such a way as will most effectively tend to promote health, safety, order,
amenity, convenience and general welfare’. In general town planning
schemes are conceived not only in the interests of the general public but in

the interests of inhabitants of the area covered by the scheme. (Administrator
Transvaal and the Firs Investments (Pty) Ltd v Johannesburg City Council
1971 (1) SA 56 (A) at 70D; BEF (Pty) Ltd v Cape Town Municipality & others
1983 (2) SA 387 (C) at 401F).

[41] The previous applications for rezoning were submitted to the appellant
in terms of s 47 of the Town Planning Ordinance 27 of 1949. The current
planning legislation applicable to KwaDukuza is the KwaZulu-Natal Planning
and Development Act 6 of 2008. The former, amongst other things, provides
for the adoption, replacement and amendment of the scheme. Most
significantly, it provides for the alteration, suspension and deletion of
restrictions to land. The aim being to promote a uniform planning and
development system, which treats all citizens of the province equitably,
provide a fair and equitable standard of planning and development to
everyone and favour lawful development and other values. In this regard, the
appellant was empowered to alter the previous determinations on the GLA, for
the purposes of controlling density in line with the development of the town
and the nature of the Lifestyle Centre. Therefore the provisions of the scheme
apply to the respondent as well. The appellant being a regulatory authority
has a duty to amend the scheme for the benefit of the inhabitants of the area
covered by the scheme. In that regard it has a duty to balance the interests of
the public as well as those of the respondent, the developer.

[42] The respondent had a duty to submit plans for approval prior to
commencing with building extensions on the Lifestyle Centre. The
respondent’s reliance on previously approved plans under previous schemes
instead of the current version of the town planning scheme was misplaced. By
so doing the respondent tried to bypass the special zoning provisions in the
current scheme.

[43] In seeking an order compelling the appellant to consider the plans the
respondent was forcing the appellant to consider plans that would be in line
with its own definition of GLA. The calculations of the GLA by the respondent
were made ex post facto the submission of the plans for approval. The

respondent caused the buildings to be built without approved plans and was
trying to regularize the position by relying on the previous determinations by
the appellant.

[44] In considering how the term GLA should be defined, a material
consideration should be the nature of the Lifestyle Centre, as the term GLA is
not defined in the scheme. It is common cause that the nature of the Lifestyle
Centre, rezoned to Special Zone 10, is not a conventional shopping complex.
The main judgment describes it as a holistic complex of shops, restaurants
and entertainment facilities, with the focus on outdoor living areas, including a
nursery, having recreational facilities like an animal farm, gymnasium,
wellness centre, open air gardens and extensive landscaping. It is clear from
this description that the purpose of a lifestyle centre is for ‘lifestyle’ enjoyment
rather than for shopping. It inconceivable that the meaning of GLA was
intended to apply to shops only to the exclusion of other lettable areas, as this
would go against the nature and purpose of the Lifestyle Centre. The
dominance of the shops over the lifestyle activities was never envisaged in
the town planning scheme.

[45] I do not agree that the definition for which the appellant contends will
defeat the purpose of a Lifestyle Centre. A lifestyle centre was not intended to
have the shops dominate the entire development area. The finding in the main
judgment that the proposed development would still be subject to the floor
area ratio (FAR), coverage and height restriction, would defeat the purpose of
a lifestyle centre.

[46] My colleague is of the view that it is quite inconceivable that the words
the total GLA of the property appearing in Table D, additional control 3, were
intended to apply to all areas, shop and non-shop areas. This was introduced
as a measure of control in the latest scheme to control density. The increase
in shop area only, would have the effect of increasing density to the Lifestyle
Centre, without consideration of the traffic volumes and environmental impact
on the part of the town. The appellant confirmed that in the previous schemes
the nursery was not taken into account. However, it was considered when the

current controls were introduced in November 2011 to limit the total GLA.
There is nothing amiss with regard to that amendment, as the nursery is a
lettable area.

[47] In Tronox KZN Sands (Pty) Ltd and KwaZulu-Natal Planning and
Development Appeal Tribunal and Others [2016] ZACC 2; 2016 (4) BCLR 469
(CC), the Constitutional Court confirmed that municipal planning decisions lie
within the exclusive competence of municipalities. The term GLA can
therefore not be interpreted in isolation from the considerations taken into
account by the appellant when amending the scheme. The short to medium
term solutions, limiting extensions to no more than 20 percent of the current
GLA per anchor tenant, mostly to the southern and south western parts of the
centre, to curtail the impact on the current access and parking areas were well
considered and within the competency of the appellant. The extension of the
MICA shop was not accepted as it was too substantial. This was in line with
Van
der
Merwe’s
recommendations
which
were
based
on
traffic
considerations which have not been challenged by the respondent. Van der
Merwe recommended that the total GLA of the property be restricted to
31 000 m² and that the development was not to exceed 28 000 m² subject to
approval by the appellant and the Department of Transport.

[48] Van der Merwe, an expert, who considered the application by the
respondent, proposed progressive adjustments to accommodate the
respondent’s plans, subject to the approval by the Department of Transport.
This was done after consideration of the concerns raised by an objector and
the Department of Transport. The main considerations being traffic
consideration along the MR398 and MR445 and that the Lifestyle Centre was
never intended to be a conventional shopping complex. It was therefore
incumbent upon the appellant to place additional controls to limit the total GLA
of the centre, until such time as the larger central business area had been
evaluated in terms of the Kwa-Dukuza Scheme review process.

[49] Town planning, management and considerations of traffic volumes lie
only within the competency of the appellant. The respondent seemed to

suggest that because the town has not grown in terms of development and
volumes in traffic the rules which were applicable when the town was static,
should apply in the present times. The GLA definition which should be
accepted is the one provided in Table D, as it caters for density controls of the
centre. The term GLA should be interpreted in the context of the nature of the
centre and purposively. Density control is the main consideration here, not the
ambitions of the respondent.

[50] For the definition of GLA, one can only look at the definition provided in
Table D, which deals with density controls. It refers to ‘the total GLA of the
property’ it does not refer to ‘the total GLA of the shop’. The meaning of the
words interpreted in their context and purposively, within the constraints
imposed by the language should be accepted as the proper interpretation.
(See Natal Joint Municipal Pension Fund v Endumeni Municipality [2012]
ZASCA 13; [2012] 2 ALL SA 262 (SCA) para 20–24). Density control is the
main controlling factor in considering the proposals by the respondent.

[51] The scheme defines ‘Gross shop area’ – ‘as the sum of the floor areas
of both the storage and retail areas of a shop and shall include wall thickness
and basements used other than for parking purposes but shall exclude public
convenience’. This is significant as it shows that the GLA applies to all lettable
areas. The purpose of leasing property is to generate income from all lettable
areas hence GLA should apply not only to shops, but to exclusive use areas
and the nursery.

[52] There is nothing irregular from the proposals made by Van der Merwe
that the proposed amendment related to the GLA of the property. In
considering which meaning should be accepted, a businesslike meaning
needs to be adopted rather than an unbusinesslike meaning, which
undermines the purpose of a Lifestyle Centre. Van der Merwe was open-
minded in stating that should the appellant wish to consider a further
development of the centre; it will have to be subject to ‘the pre-approval of
other state organs.’

[53] The current planning legislation, the KwaZulu-Natal Planning and
Development Act 6 of 2008, provides in s 6(7) that the current scheme
replaces all planning schemes within the area of its operation. Furthermore, in
s 6(10) it provides that ‘[a]ny extension to buildings or structures on land
contemplated in subsection 9 must comply with the scheme’. Section 9(1)
provides that the municipality may initiate the amendment of the scheme.
These provisions allow for a rectification on any previous genuine mistakes in
the scheme by both parties. Even if there was no mistake on the part of the
parties, it could still be argued that the previous amendments were in line with
the existing scheme at the time. The appellant in this case was not bound by
previous rulings on rezoning and special consent which were made in line
with the previous schemes. The current approvals should be in line with the
scheme that is currently in existence.

[54] The recommendations made by Van der Merwe that the total GLA, of
the property will be permitted subject to the approval of the appellant and the
KZN Department of Transport should prevail. The definition of the GLA of the
shop as stated in the main judgment is not in line with the nature of the centre
and the current scheme of the KwaDukuza town.

[55] I respectfully find that the appellant should not be ordered to consider
the plans submitted by the respondent. The respondent knew very well that it
had to obtain approval before building. The interpretation of GLA as
contended for by the respondent was to try to regularize the illegal building
without the approved plans. This was a ruse on the part of the respondent.

[56] The appellant did not refuse to consider the plans submitted by the
respondent. The appellant merely sent a referral to the respondent in terms of
s 7(5) of the National Building Regulations and Building Standards Act 103 of
1977, advising the respondent that it will refuse to approve plans whilst the
GLA on the property exceeded the permitted area in terms of the current
scheme. The appellant was exercising its regulatory authority in this regard.

[57] In the result, I make the following order:

The appeal is upheld with costs.
The order of the court below is set aside and replaced with the
following order:
‘The application is dismissed with costs.’

__________________

YT Mbatha

Judge of Appeal

Plasket JA (Leach JA concurring)

[58] I agree with the order proposed by my sister Mbatha. I am
consequently unable to agree with the conclusion reached by my brother
Zondi. I shall set out briefly my reasons for that disagreement.

[59] As Zondi JA has set out the facts and the context within which the
interpretation of the zoning scheme must occur, I proceed directly to our point
of divergence. That involves a consideration of the use and density controls
from the inception of the zoning scheme to the last amendments that were
effected in 2011, and which apply at present.

[60] At its inception, the use controls applicable to the lifestyle centre
referred to a restriction of 14 000m2 GLA in relation to shops and, in the
density controls, it was provided that the total floor space could not exceed
25 000m2 GLA.

[61] When the scheme was amended in July 2005, GLA in respect of shops
in the use controls was increased to a maximum of 25 000m2 and, in the
density controls, total floor space was limited to 25 000m2. Total floor space
was thus de-linked from GLA.

[62] When the scheme was amended in October 2007, GLA in respect of
shops continued to be restricted to 25 000m2 in the use controls and, in the

density controls, total floor space was increased to 28 000m2. Again, no
linkage between total floor space and GLA was maintained.

[63] Finally, when the scheme was amended in 2011, the prior reference to
GLA in relation to shops was deleted in the use controls, and the density
controls were amended to provide that the ‘total G.L.A. of the Property be
restricted to 31 000m2 and no development exceeding 28 000m2 of G.L.A. will
be permitted unless . . .’.

[64] What emerges from this history of the use and density controls is that
over a period of time, the appellant, in successive amendments, moved
steadily away from the original linkage between shops and GLA as the means
to achieve the unique features of the lifestyle centre.

[65] The complete de-linking of GLA from shops in the 2011 amendment
cannot be wished away. The words used in the use and density controls
cannot simply be ignored. To read into those words precisely what the
appellant deliberately left out would be to legislate for the appellant, rather
than to interpret the product of the appellant’s application of mind.

[66] I do not believe that the plain meaning of the use and density controls,
within their historical context, can be trumped by reliance on the purpose of
the scheme: if the result of the 2011 amendment was impermissible for want
of a proper purpose on the part of the appellant, review rather than
interpretation would be the remedy.

[67] In my view, the respondent was not entitled to the declarator that the
term ‘GLA’ in the scheme relates ‘only to the relevant retail space for the
exclusive use of retail shop tenants’ and ‘excludes uses other than “shop” as
defined in the scheme . . .’. The rest of the relief that was sought and granted
was reliant on the grant of this declarator. The application in the court below
ought, for this reason, to have been dismissed.

[68] In the result, I would uphold the appeal with costs, set aside the order
of the court below and replace it with an order dismissing the application with
costs.

_________________
C Plasket
Judge of Appeal

APPEARANCES:

For appellant:
G D Goddard SC

Instructed by:

Shepstone & Wylie Attorneys, Umhlanga Rocks

Webbers, Bloemfontein

For respondent:
A M Annandale SC

A J Boulle

Instructed by:

Richard Evans & Associates, Kloof

Symington & De Kok Inc, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

18 March 2020

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.

KwaDukuza Municipality v Lahaf (Pty) Ltd (940/18) [2020] ZASCA 09 (18 March 2020)

Today the Supreme Court of Appeal (SCA) upheld an appeal, from the KwaZulu-Natal
Division of the High Court, Pietermaritzburg (high court), with costs. The appeal concerned
the interpretation of the words ‘the total Gross Lettable Area (GLA) of the Property’, in a single
zone in a town planning scheme which applies exclusively to the Lifestyle Centre (Centre) in
Ballito, KwaZulu Natal.

A brief background of the matter is that, the respondent, Lahaf (Pty) Ltd, and two of its
tenants submitted to the appellant, KwaDukuza Municipality, building plans for approval. The
appellant did not consider the plans. The appellant’s stance was that what the respondent
had built and proposes building at the Lifestyle Centre contravenes the limitations imposed on
the property in terms of its zoning controls. The parties were in dispute as to which built areas
in the centre constitute GLA and which areas do not. The respondent, thereafter, sought an
order in the high court directing the appellant to consider the three sets of building plans
submitted by the respondent in light of the declared definition of the GLA within 60 days of the
order. The high court accepted the respondent’s contention and held that the interpretation of
GLA contended for by the respondent had to be preferred to that of the appellant as it would
avoid absurdity and unconstitutionality. The appellant was directed to consider the relevant
building plans submitted to it by the respondent or its tenants in accordance with the declared
definition of 'GLA'.

In the Supreme Court of Appeal (SCA), the appellant submitted that the 'GLA' comprises all
areas notionally capable of being let including storage areas and receiving yards. It drew no
distinction between shop and non-shop areas. The respondent contended that the word 'GLA'
must be interpreted to mean only the area of 'shops' as defined in the scheme clauses, that is
to say, the areas let out by the respondent to be used as shops and all areas used exclusively
by a shop tenant.

In the SCA, per Mbatha JA (Leach JA concurring) (the majority judgment), considered how
the term GLA should be defined. In considering how GLA should be defined the nature of the
Lifestyle Centre, as the term GLA is not defined in the scheme, should be taken into account.
A Lifestyle Centre is not a conventional shopping complex. In considering which meaning
should be accepted, a businesslike meaning needs to be adopted rather than an
unbusinesslike meaning, which undermines the purpose of a Lifestyle Centre. The SCA, per
Mbatha JA, held that it was inconceivable that the meaning of GLA was intended to apply to
shops only to the exclusion of other lettable areas, as this would go against the nature and
purpose of the Lifestyle Centre. GLA applies to all lettable areas, this is further evident by
how ‘Gross shop area’ is defined in the scheme. The purpose of leasing property is to
generate income from all lettable areas hence GLA should apply not only to shops, but also to
exclusive use areas and the nursery.

The majority judgment went on and held that the appellant should not be ordered to consider
the plans submitted by the respondent unless if compliant with the appellant’s interpretation of
GLA. The respondent knew very well that it had to obtain approval before building. The
interpretation of GLA as contended for by the respondent was to try to regularize the illegal
building without the approved plans.

In a concurring judgment penned by Plasket JA (in which Leach JA concurred), Plasket JA
concurred with the order of majority judgment albeit for different reasons. Plasket JA
disagreed with the conclusion reached by Zondi JA, he held that based on history of the use
and density controls what emerges over a period of time, is that the appellant, in successive
amendments, moved steadily away from the original linkage between shops and GLA as the
means to achieve the unique features of the lifestyle centre. Plasket JA went on to hold that
the meaning of the use and density controls, within their historical context, cannot be trumped
by reliance on the purpose of the scheme.

In a dissenting judgment written by Zondi JA, Zondi JA (in which Petse DP concurred) held
that based on the history of the Lifestyle Centre, the whole purpose of its design was to create
a mix of uses and it was to include lifestyle features such as restaurants, a nursery, large
open walkways and water features and service providers such as the Post Office and banks.
The Lifestyle Centre was to be different from a conventional shopping centre dominated by

retail outlets. The purpose of creating the Lifestyle Centre would be defeated if GLA was not
confined to shops, because all lifestyle features such as restaurants, nurseries, animal farms,
a gymnasium, open air tea gardens and an open air theatre would fall within the definition of
GLA, as a result of the notion that they are capable of being leased out.  For such reasons the
words ‘the total GLA of the property’ have to be interpreted to comprise areas leased out by
the respondent to be used as ‘shop’ and all the areas used exclusively by the shop tenant.

In the result, Zondi JA would have dismissed the appeal with costs including the costs of two
counsel and the appellant would have been ordered to consider the building plans submitted
to it by the respondent.

The appeal was upheld with costs.