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

Siyalanda Property Development (Pty) Ltd owned erf 3783 Summerstrand, Gqeberha, formed by consolidation of two erven (3112 and 3782), both formerly portions of a subdivided parent property (erf 1256). In September 2018, Siyalanda submitted a Site Development Plan (SDP) to develop 420 residential units in 30 blocks, providing 11,937m² of open space. The municipality insisted on 16,884m² open space based on regulation 9.3.1.2 of the Port Elizabeth Zoning Scheme Regulations. Siyalanda submitted an alternative second SDP under protest, providing the municipality's required open space, but reserved rights to challenge the interpretation of regulation 9.3.1.2. The regulation required open space where an erf was "created for residential purposes...whether by subdivision or rezoning". The high court held the regulation applied; the full court reversed this and declared the regulation inapplicable. The municipality sought special leave to appeal. Notably, the Port Elizabeth Zoning Scheme Regulations had since been repealed and replaced by the Nelson Mandela Bay Metropolitan Municipality Land Use Scheme 2023 (Integrated Scheme) on 11 September 2023, which required only 24m² private open space per dwelling unit (totaling 10,080m² for 420 units).

• Whether special leave to appeal should be granted under section 16(1)(b) of the Superior Courts Act 10 of 2013
• Whether special circumstances existed to warrant granting special leave to appeal, particularly where the governing regulations had been repealed
• Whether regulation 9.3.1.2 of the Port Elizabeth Zoning Scheme Regulations applied to property created by consolidation of subdivided erven rather than by subdivision or rezoning
• The proper interpretation of 'created for residential purposes...whether by subdivision or rezoning' in regulation 9.3.1.2
• Whether 'open space' in regulation 9.3.1.2 referred to public or private open space
• Whether the prospects of success were so strong that refusal of special leave would result in manifest injustice

The application for special leave to appeal was dismissed with costs against the applicant (Nelson Mandela Bay Metropolitan Municipality).

For special leave to appeal under section 16(1)(b) of the Superior Courts Act 10 of 2013, reasonable prospects of success are necessary but insufficient; special circumstances must also be established. Special circumstances may include: (1) a substantial point of law; (2) prospects of success so strong that refusal would result in manifest denial of justice; or (3) matters of great importance to the parties or public. Where the regulatory framework governing a dispute has been repealed and replaced with less onerous requirements, and where the applicant provides no evidence of other affected matters, special circumstances are not established. Regulation 9.3.1.2 of the Port Elizabeth Zoning Scheme Regulations, properly interpreted in its textual and contextual setting within Part V (subdivision of land), applies only to erven created for residential purposes by cadastral subdivision or rezoning permitting subdivision. It does not apply to property created by consolidation of previously subdivided erven. The term 'rezoning' in regulation 9.3.1.2 means rezoning in a manner permitting subdivision, as this is the only means by which an erf could be 'created for residential purposes' in the context of subdivision. 'Open space' in regulation 9.3 refers to 'public open space' to be transferred to the municipality, not communal private space within a development.

The Court noted it appeared highly improbable that any developer with a pending SDP submitted before 11 September 2023 would not simply withdraw and resubmit under the new Integrated Scheme requiring less open space, though no finding was made on this in motion proceedings. The Court observed that the municipality's pursuit of open space greater than that required under the prevailing Integrated Scheme or tendered by Siyalanda was 'inexplicable'. The Court commented that there is no provision in the Port Elizabeth Zoning Scheme for 'communal open space' as found in sectional title developments under the Sectional Titles Act 95 of 1986, and noted that municipality officials appeared to have been 'working around this lacuna' for years through informal guidelines. The Court indicated that following the refusal of special leave, the parties must fall back on their interim agreement, with the municipality making a final decision on the extent of open space (Siyalanda having tendered 11,937m²) without reference to regulation 9.3.1.2.

This case establishes important principles regarding applications for special leave to appeal, particularly where the underlying regulatory framework has been repealed during the course of litigation. It demonstrates that courts will not grant special leave merely on assertions of public interest without concrete evidence, especially where new regulations have superseded the disputed provisions. The judgment emphasizes the high threshold for special leave applications and the requirement for applicants to establish both special circumstances and strong prospects of success resulting in manifest injustice. The case also provides guidance on statutory interpretation in land use planning contexts, emphasizing the importance of textual, contextual, and purposive analysis, and illustrates the principle that regulations must be interpreted within their structural context (here, regulation 9.3.1.2 being situated within Part V dealing with subdivision of land). It demonstrates courts' reluctance to entertain further appeals on repealed legislation absent compelling special circumstances affecting parties or the public.