THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable

Case No: 20436/2014
In the matters between:
GREEN WILLOWS PROPERTIES 215 (PTY) LTD
APPELLANT

and

ROGALLA VON BIBERSTEIN INVESTMENT COMPANY
RESPONDENT
(PTY) LTD

Neutral citation:
Green Willows Properties v Rogalla Investment Company
(20436/14) [2015] ZASCA133 (29 September 2015)
Coram:
Mpati P, Cachalia, Tshiqi, Swain JJA and Gorven AJA
Heard:
11 September 2015
Delivered:               29 September 2015

Summary:
Contract – sale of land – whether terms and conditions in written
agreement fulfilled – recusal – trial judge refusing recusal
application after dismissal of application of absolution from the
instance – no basis for application for recusal of trial judge.

ORDER

On appeal from: KwaZulu-Natal High Court, Pietermaritzburg (Pillay J sitting as
court of first instance):

The appeal is dismissed with costs.

JUDGMENT

Tshiqi JA (Mpati P, Cachalia, Swain JJA and Govern AJA) CONCURRING

[1] The issue in this appeal is whether the terms of a written contract of sale of
property concluded in June 2006 between the appellant (Green Willows) and the
respondent (Rogalla) were fulfilled. In terms of the written contract Rogalla undertook
to sell to Green Willows, a piece of undeveloped land: Portion 97 of the Farm
Brakkloof, in the Plettenberg Bay Municipal area, now known as the Bitou
Municipality, Western Cape Province (the Municipality) for  R13 250 000. Green
Willows intended to develop it by constructing 80 residential units, measuring a
minimum of 9 000 square metres as well as onsite parking bays. In order for the
development to take place, it was necessary to rezone the property – which at the
time allowed for only one building – through an amendment allowing for the proposed
development. The approval of the amendment had to be given by the Municipality.

[2] The written contract contained a clause which provided:

„18.1 The Seller warrants written approval by the local authority for the development of
property as set out in annexure B, for the construction of 80 residential units measuring a
minimum of 9 000 square meters plus onsite parking bays (“the scheme”).

18.2   The Purchaser shall, pending the granting of final written approval of the scheme by
all relevant authorities retain an amount of R3 250 000 (Three Million Two Hundred and Fifty
Thousand Rand) of the purchase price, which amount shall be secured by a bank
guarantee/s issued by a Bank or other recognised financial institution, acceptable to the
Seller and shall be payable with interest thereon, calculated from date of registration of
transfer at the rate of 5 per cent per annum, compounded monthly, on demand upon the
granting of such final written approval as referred to herein, and which amount shall be
forfeited to the Purchaser should final written approval of the scheme by all relevant
authorities not be granted as provided for in this clause 18.

18.3  The Purchaser shall, at the Purchaser‟s cost, do all things necessary and execute
and produce all documents that may be reasonably required by all relevant authorities for the
securing of final written approval of the scheme, including but not limited to the following: site
layout plan, Road and storm water design, sewer design, water supply and services report.

18.4  The Purchaser undertakes to do all things as may be reasonably required by all
relevant authorities for the securing of final written approval of the scheme within 90 days
from the signature of this offer to purchase by the last party signing in time.

18.5  In the event that for whatsoever reason, any final written approval of the scheme,
required by any relevant authority, is not secured within the period referred to in clause 18.4
above, the same shall automatically be extended for a further period of 90 days or by such
period as the parties may agree in writing, and the Seller shall be entitled, at the Purchaser‟s
cost and acting as the Purchaser‟s duly authorised attorney and in his place and stead, to
secure fulfilment of all such things as maybe reasonably required by all relevant authorities
of the scheme and to comply with such conditions as may be prescribed by any relevant
authority for the submission of building plans for the purpose of the development of the
property.‟

The 90 day extension contemplated in clause 18.5 had the effect that the final written
approval had to be obtained not later than 18 December 2006.

[3] On 5 May 2006 the Municipality had already passed a resolution („the May
resolution‟) imposing certain conditions in respect of the anticipated development.
Only two of those conditions are relevant for the purposes of the dispute. The
resolution containing the relevant conditions reads:
„That in terms of section 43(3) of the Land Use Planning Ordinance, 1985 (Ord. 15 of 1985)
[LUPO] approval be granted for an amendment of the conditions of rezoning approval which
were imposed by the Municipal Council on 29 May 1995 in respect of Portion 97 of the Farm
Brakkloof No.443 in order to increase the number of residential “units”, and to replace the
building which currently accommodates the reception area, conference room and restaurant
with additional residential “units”, subject to the following conditions:

„(a)      ...
(b)
...
(c)
...
(d)
...
(e)
That the ownership status, management and maintenance responsibilities of the
existing access road be addressed to the satisfaction of the Head: Public Works, and that
this condition may require that the access road be subdivided as a separate erf.
(f)
...
(g)
That, prior to building plan approval, a Site Development Plan which addresses all
the above-mentioned conditions, be submitted for consideration and approval (and that no
construction work of any nature occurs prior to building plan approval).‟

The reference to Annexure B in Clause 18.1 of the contract is a reference to this
resolution.

[4] Pursuant to the agreement the property was transferred to Green Willows on
18 September 2006. Green Willows paid an amount of R10 000 000 of the purchase
price against registration of transfer and secured the balance of R3 250 000 plus
retention interest through a bank guarantee. In the meantime, and in order to ensure
compliance with the terms of the contract, Rogalla took steps to obtain the approval.
On 18 December 2006 the Municipality passed a resolution to the following effect:
„That approval be granted for the Revised Site Development Plan No. 06/08-01, 02 and 04
dated 10 December 2006, as further revised on 15 December 2006 (which makes provision

for 80 residential units within a total floor area of 9 000m2 and not less than 120 parking
bays) in respect of Portion 97 of the Farm Brakkloof No.443, subject to the following
conditions:
“(a)
That the floor levels of all habitable rooms be above the 1:50 year floodline.
(b)
That the ownership status, management and maintenance responsibilities of the
existing access road be addressed to the satisfaction of the Head: Public Works prior to any
building plan approval, and that this condition may require that the access road be
subdivided as a separate erf.
(c)
That an appropriate Services Agreement (which includes detail of the payment of
augmentation and related fees) be finalised prior to building plan approval”‟.

[5] It is this resolution, to which I shall refer as the December resolution, that is
the subject matter of this dispute. The question to be answered is whether the
resolution constitutes final written approval as contemplated by the contract. This
requires an interpretation of clause 18, in particular, to ascertain the meaning of the
words „final written approval‟.

[6] The resolution was received by Rogalla on 18 December 2006. On the same
day Rogalla, through its attorneys, wrote a letter to Green Willows stating that the
terms of clause 18.2 of the contract had been fulfilled and  demanding payment of
the outstanding amount of R3 250 000. No payment was forthcoming and further
correspondence exchanged between the parties did not yield any result.

[7] Rogalla issued summons against Green Willows for the payment of this
amount, plus retention and mora interest. Rogalla also claimed payment of an
additional amount of R81 762, which it stated represented costs incurred during the
second period of 90 days leading up to 19 December 2006 for securing fulfilment of
all such things as were reasonably required by the relevant authorities, as
contemplated by clause 18.5. Green Willows defended the action. It denied that it
was liable to pay the amount claimed, and pleaded that final written approval had not
been granted and the amount was thus forfeited in terms of clause 18.2 of the

contract. The proceedings in the high court culminated in a trial before Pillay J in the
KwaZulu-Natal Division, Pietermaritzburg1.

[8] At the trial, Rogalla led the evidence of several witnesses and after it had
closed its case, Green Willows moved an application for absolution from the
instance. After argument, the judge took some time to consider the application, after
which she gave a ruling dismissing it. The ruling was in the form of a judgment in
which the court made certain factual and legal findings. Before the trial could proceed
further, a debate between the judge and counsel ensued, with the judge responding
to questions by counsel for Green Willows on whether certain specific findings were
final, to which she responded that they were final unless displaced by the leading of
further evidence. After this interaction, counsel for Green Willows applied for the
judge‟s recusal.

[9] The main ground for the application was that, without hearing the case for the
defendant and before the trial was concluded, the judge had made conclusive
findings against her client. Pillay J dismissed the application for her recusal. She
stated that it had not been demonstrated that the court would not be open to
persuasion by further evidence and submissions of counsel. Green Willows then
applied for a postponement in order to bring an application for leave to appeal
against this order. This application too was refused. Thereafter Green Willows closed
its case without tendering any evidence. The matter was argued and judgment given
in due course.

[10] On the merits, the court a quo stated that it was impressed by the evidence of
Mr Gericke and Mr Underwood, the two witnesses who testified at the instance of
Rogalla. It found that the approval of the site development plan („SDP‟), through the
December resolution finally removed any impediments that previously existed by way
of conditions or restrictions. It further found that, even if it were accepted that the
approval was invalid, it stood until set aside, in the light of the decision of this court in
Oudekraal2. The court consequently granted an order in Rogalla‟s favour.  A

1 The Court has been renamed the KwaZulu-Natal Division of the High Court, Pietermaritzburg (KZP) since 23
August 2013 in terms of the Renaming of High Courts 2014(3) SA 319.
2 Ouderkraal Estates (Pty) Ltd v City of Cape Town & others 2010 (1) SA 333 (SCA).

subsequent application for leave to appeal was dismissed.  This appeal is with the
leave of this court.

[11] In this court, Green Willows persisted with the contention that the terms of the
contract had not been met. It submitted that the approval of the SDP by the
December resolution did not constitute final written approval.

Did the December resolution constitute final approval?
[12] Among the witnesses who testified for Rogalla were Mr Gericke and Mr
Underwood. In reaching the conclusion that the December resolution constituted final
approval, the high court accepted their evidence. Mr Gericke was the manager of the
Municipality‟s town planning and development department. He had been involved in
the process leading to the approval of the SDP. He holds a BSc degree, a Master‟s
degree in town and regional planning and an LLB degree. His career in town
planning and municipalities goes back to 1989. In 2003 he joined the Bitou
Municipality. He testified about his knowledge of the resolutions that were taken by
the Municipality concerning this matter and other similar applications for the approval
of development schemes. He stated that he had the delegated powers to sign off and
finally approve all building plans for the Municipality.

[13] Mr Underwood testified as an expert witness in town and regional planning.
Although he was not directly involved in the approval process pertaining to this
dispute, he stated that he had extensive knowledge and experience of planning
procedures and legislation in the Western Cape.

[14] Messrs Gericke and Underwood explained the process followed in considering
rezoning applications in the Western Cape and explained the significance of a SDP.
They stated that a rezoning application comprised four stages, the approval of a SDP
being the completion of the third stage in the process. According to both of them, a
SDP, although not mentioned under the LUPO, was a town planning technique that
was commonly used to assist municipalities to understand the nature of a
development in a schematic or conceptual form. It showed the layout, form and
quantification of the development proposal in sufficient detail to make the proposal

clear. When approved, it would serve as assurance that the proposed development
would be permitted and the purchaser could with certainty go ahead and obtain
valuations in respect of the property on the basis of that approval. The next step,
once a SDP had been approved, was the submission of building plans that would
also be approved, as long as they complied with the SDP. The fourth stage also
entailed the approval of detailed engineering works drawings and associated
administrative steps. Thereafter construction would be allowed to proceed.

[15] Green Willows did not lead any evidence to dispute that of these two
witnesses.  It must thus be accepted that the SDP was a tool utilised in the
Municipality to grant final approval of a rezoning application and that once approved,
it constituted final written approval as envisaged by clause 18. That this is so is
supported by the fact that the May resolution, is the resolution by which the
Municipality imposed all conditions that needed to be fulfilled before it would approve
the development. Significantly, sub-paragraph (g) of that resolution means that a
SDP was required to address these conditions before building plans could be
approved and construction could commence. The required SDP was submitted and
approved. It can thus be inferred that the Municipality was satisfied that it had
addressed all the conditions prescribed by it in clauses (a) to (f) of the May
resolution, and Mr Gericke confirmed this. It thus follows that written approval, as
contemplated in clause 18.1 of the contract, for the development of the property as
set out in May resolution (the scheme) was obtained timeously.

[16] I am strengthened in my reasoning by two factors. First, by letter dated 14
December 2006 Green Willows requested Mr Gericke to „confirm in writing to
ourselves if there is final confirmation of this site development plan‟ noting that „the
final payment for the property is due pending the confirmation of the development‟.
This is a clear indication that, at the time, Green Willows itself saw the approval of
the SDP as the final written approval which would make the balance of the purchase
price payable. Secondly, after the December resolution was passed and sent to it,
Green Willows elected to submit another application for rezoning of the same
property. After considering that subsequent application, the Municipality passed a
resolution granting approval on the strength of a revised SDP that provided for a
reduced number of units. In that instance Green Willows accepted the resolution as

constituting final written approval and on the strength of this, submitted building plans
for approval. The manner in which this application was processed illustrates the
cogency of the evidence of Messrs Gericke and Underwood that the approval of a
SDP constituted final written approval.

[17] The above finding alone should dispose of this appeal. But counsel for Green
Willows persisted with an attack on the December resolution on two further grounds.
First, she submitted that the Municipality had failed to obtain a departure from the
rezoning scheme as required in terms of s 15(1) of the LUPO and the Regulations
promulgated in terms of s 47(1) thereof. The Municipality, so the argument
proceeded, thus did not lawfully approve a floor area or bulk of 9 000 square metres.
In the alternative, Green Willows contended that the resolution did not fulfil condition
(e) of the May resolution. Condition (e) states:
„That the ownership status, management and maintenance responsibilities of the existing
access road be addressed to the satisfaction of the Head: Public Works, and that this
condition may require that the access road be subdivided as a separate erf.‟

I will deal with both grounds in turn.

The Departure in relation to Bulk
[18] Bulk is defined as the factor, expressed as a ratio of one ie 1:00 prescribed for
the calculation of the maximum floor area of a building or buildings permissible on an
erf3. Bulk governs the density of the construction allowed on any property. The size
of the floor area of a building on land is governed by the bulk limitation in the zoning
scheme. The warranty required an assurance that it was possible to get 9 000
square metres of bulk on the property.

[19] The issue relating to a departure arose for the first time during Mr
Underwood‟s cross-examination. He conceded that before he came to court, he did
not do a bulk factor calculation to satisfy himself that 9 000 square metres would be
achievable on the property. He was asked to perform a manual measurement of the
floor area depicted in the SDP. He then stated that it appeared that there was a bulk

3 The term is defined as such in the Plettenberg Bay Town Planning Scheme.

shortage or a minor bulk overrun as compared to the size of the property but that the
deviation could be fixed through a technique normally used in the Western Cape
called „departures‟. He, however, testified that he could not say that the plan proved
that one could not get 9 000 square metres on the property concerned. He also
stated that, although it was „tight‟, it could be achieved within the ambit of the rights
conferred by the approval of the SDP.

[20] Mr Gericke was also questioned on the bulk factor. He testified that the
Municipality approved the SDP on the basis that it would not exceed 9 000 square
metres. During cross-examination he agreed that at the time of the approval he had
not engaged in a calculation to fit the 9 000 square metres, but took the initiative to
do so during the course of the trial to satisfy himself that it was indeed possible. After
performing the exercise, he was satisfied that with minor „tweaking‟ of the plan this
was possible. On a factual level, accordingly, there is no evidence that the bulk factor
could not be achieved and that a departure was necessary.

[21] Significantly, when questioned on whether it was necessary to submit a
separate application for a departure, he stated that the permissible bulk is
determined when the SDP is submitted and evaluated. He said that if a SDP for
instance, indicates a different building line from that stipulated in the zoning scheme
regulations, the municipality would accept and approve it as an application for
relaxation of that building line. According to him, a SDP was a package of directions
of what a developer could or could not do. Insofar as was necessary, therefore, the
application for relaxation was made and granted. There is no basis to reject the
evidence of Mr Gericke in this regard. The contention that the Municipality failed to
approve a departure from the rezoning scheme thus has no merit.

The condition relating to the access road
[22] The contention by Green Willows that  condition (e) of the May resolution had
not been  fulfilled was influenced by a misunderstanding of Mr Gericke‟s evidence
when he stated that there was a long standing disagreement between the
Municipality and the roads agency in relation to the ownership and responsibility of
„the road‟. Mr Gericke‟s evidence related to a road depicted as the „Divisional Road

Piesang Valley‟. That road is depicted on the SDP to the East of the property and
there were no outstanding issues pertaining to it. Condition (e), according to Mr
Gericke, related to a different road depicted on the SDP as a tarred road to the North
of the property. It serviced the property in question and two other properties.
According to him, it transpired in October 2006, after the condition had been inserted
in the May resolution, that the condition had in fact been fulfilled. The road already
formed part of an approved subdivision and already vested in the Municipality. The
condition was, nonetheless retained as condition (b) in the December resolution
because it served as a reminder to the Municipality that it needed to have it formally
transferred into its name. He stated that it was not for the developer to do so, but for
the Municipality. Mr Gericke‟s evidence in that regard was also not disputed.

[23] It thus follows that the further attacks on the December resolution are also
without merit.

The recusal application
[24] Green Willows persisted on appeal with the contention that the judge should
have recused herself after refusing the application, because she had made
conclusive findings before the end of the trial.

[25] The test for recusal is objective and the onus of establishing it rests upon the
applicant. The question is whether a reasonable, objective and informed person
would on the correct facts reasonably apprehend that the judge has not brought or
will not bring an impartial mind to bear on the adjudication of the case, that is, a mind
open to persuasion by the evidence and submissions of counsel.4

[26] In R v Silber5 an application for recusal of the magistrate was, as in this
matter, made when the matter was well on its way. There too the application was

4 President of the RSA & others V South African Rugby Football Union & others 1999 (4) SA 147 (CC)
para 48.
5 R v Silber 1952 (2) SA 475 (A) at 481G-H.

grounded on certain utterances and rulings made by the magistrate during the
course of the trial. Of the recusal application this court said:
„It unavoidably happens sometimes that, as the trial proceeds, the court gains a provisional
impression favourable to one side or the other, and, although normally it is not desirable to
give such an impression outward manifestation, no suggestion of bias could ordinarily be
based thereon. Indeed a court may in a proper case call upon a party to argue out of the
usual order, thus clearly indicating that its provisional view favours the other party, but no
reasonable person, least of all a person trained in law, would think of ascribing this
provisional attitude to, or identifying it with, bias.‟

[27] In Take and Save Trading v Standard Bank of SA Limited 6 the defendants‟
legal team withdrew from the trial without proffering any reason during the course of
the plaintiff‟s case. The defendants represented by one of them then applied for a
postponement of the trial.  During the course of the debate, the judge intimated that
there was little merit in two aspects of the defendants‟ case and that the
postponement would have amounted to an exercise in futility, that the other defences
depended on the evidence of one of the witnesses, which, the judge suggested,
could be given without the benefit of counsel. Eventually the judge granted a
postponement. When the matter was again enrolled, the defendants, represented by
another counsel, applied for the judge to recuse himself. The judge refused the
application and leave to appeal. On appeal this court, in addressing the allegations of
bias stated that the „possibly injudicious remarks by the judge‟ and the fact that he
had „evinced a strongly held belief‟ on the merits was „fully justified and would never
found a well-informed reasonable apprehension of bias‟.

[28] In this matter it is true that the judge did make certain findings in her judgment
on the application for absolution from the instance. But, during the debate with
counsel she explained that she could change her findings if evidence was led that
could persuade her otherwise. That to me suggests that the judge was still open to
persuasion despite expressing preliminary views on the issues.  However, despite
the assurance from the judge, Green Willows decided not to lead evidence but

6 Take and Save Trading CC & others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) para 16-18.

instead closed its case, well aware of the preliminary findings of the judge and the
intimation by her that she could change her views on the issues. There is, in the
circumstances, no basis to find that there was a reasonable apprehension of bias.

[29] In the result I make the following order:

The appeal is dismissed with costs.

________________________

Z L L TSHIQI

JUDGE OF APPEAL

APPEARANCES

For Appellants:

D C Fisher SC
Instructed by:

Du Toit Sanchez Moodley Inc., Randburg

Honey Attorneys, Bloemfontein

For Respondents:

R W F MacWilliam SC
Instructed by:

Edward Nathan Sonnenbergs, Cape Town
Matsepe Inc., Bloemfontein