Nelson Mandela Bay Metropolitan Municipality v Siyalanda Property Development (Pty) Ltd

Siyalanda Property Development (Pty) Ltd owned Erf 3783 Summerstrand, Gqeberha, formed by the consolidation of two erven previously acquired from the Nelson Mandela Bay Metropolitan Municipality. Siyalanda proposed a residential development of 420 dwelling units and submitted a Site Development Plan (SDP) under the Port Elizabeth Zoning Scheme Regulations. The municipality required Siyalanda to provide a greater amount of open space in terms of regulation 9.3.1.2 of the Scheme than Siyalanda contended was applicable. Under protest, Siyalanda submitted a revised SDP complying with the municipality’s requirements while reserving its rights. Siyalanda lodged an internal appeal under the Municipal Systems Act, which the municipality failed to determine. Siyalanda then approached the High Court for declaratory and review relief, challenging the applicability of regulation 9.3.1.2. The High Court held the regulation applicable, but on appeal the Full Court held that regulation 9.3.1.2 did not apply to the property and set aside the municipality’s decisions. The municipality sought special leave to appeal to the Supreme Court of Appeal.

The application for special leave to appeal was dismissed with costs.

The judgment clarifies the stringent threshold for special leave to appeal in the Supreme Court of Appeal, particularly where repealed legislation is concerned. It reinforces the principle that reasonable prospects of success are insufficient without special circumstances. Substantively, the case affirms a contextual and purposive approach to interpreting zoning scheme regulations and limits the circumstances in which municipalities may impose open-space requirements based on historical zoning provisions.