Polokwane Municipality v Double Four Properties and Another; Broadlands Home Owners Association NPC v Double Four Properties and Another

Double Four Properties (Pty) Ltd owned property in Polokwane with an office park. In September 2018, it discovered that its drainage system was connected to the sewer system of the adjacent Broadlands Estate (maintained by Broadlands Home Owners Association NPC), rather than directly to the Polokwane Municipality's system. Although approved building plans allowed direct connection to the municipality, the prior owner (a Trust) had connected through Broadlands due to technical difficulties and paid Broadlands a fee. When negotiations over fees between Double Four and Broadlands failed, Broadlands disconnected the system and also alleged Double Four was unlawfully encroaching on its property via an extended road. Double Four applied to the high court for interim relief to compel the municipality to provide a sewer connection and to compel Broadlands to reconnect pending permanent connection. Broadlands brought a counter-application for removal of encroachments. The application was dismissed by Semenya J, but on appeal the full bench (Muller J) upheld Double Four's appeal, ordering interim reconnection and referring the encroachment issue to evidence for determination of compensation. Polokwane Municipality and Broadlands applied to the Supreme Court of Appeal for special leave to appeal.

• Whether special leave to appeal should be granted against an interim order
• Whether the orders of the full bench were appealable
• Whether an interim interdict compelling sewerage connection is appealable
• Whether a referral to evidence on the issue of compensation for encroachment constitutes a final order
• The application of the Zweni test and interests of justice to appealability of interim and interlocutory orders
• Whether an order requiring a municipality to provide a sewer connection contravenes its By-laws requiring application by the consumer
• Whether a neighbour can be compelled to provide sewerage access without compensation

The applications for special leave to appeal in case no 879/2022 and case no 913/2022 were dismissed with costs, such costs to include the costs of two counsel where so employed.

The binding legal principles established are: (1) In determining appealability of interim interdicts, the Supreme Court of Appeal is bound to apply the test in Zweni and the interests of justice as confirmed in Lebashe Investment Group; (2) Special leave to appeal requires both reasonable prospects of success and special circumstances; (3) An interim order that restores a previous status quo pending final determination is not appealable where it does not finally determine rights; (4) A referral to evidence for determination of compensation is an interlocutory order, not a final order, and is not appealable; (5) An appeal lies against an order, not against the reasons for the order; (6) Piecemeal appeals will ordinarily not be entertained absent special circumstances; (7) An order requiring a municipality to provide infrastructure (a sewer connection) does not compel unlawful conduct where it does not absolve the applicant from complying with procedural requirements in municipal By-laws for obtaining services that utilize that infrastructure.

The Court made several non-binding observations: (1) Whether Broadlands' conduct in disconnecting the drainage installation fell within the prohibition in section 96 of the By-law or amounted to spoliation were questions of law that did not need to be determined in this appeal and did not found a basis for special leave; (2) It was apparent from the papers that Broadlands was not opposed to providing access to its waste disposal system, the issue was simply the fee to be charged; (3) Broadlands would be at liberty to approach the high court to revise the interim regime so as to claim compensation for the access it is compelled to provide; (4) In the action Double Four was required to institute, the rights and duties of the parties will be decided; (5) The high court had formed the view that Double Four enjoyed a prima facie right, and there was no reason for the Supreme Court of Appeal to revisit that judgment; (6) This was a standard case where the high court imposed an interim regime as an equitable holding measure that is not appealable to the Supreme Court of Appeal, particularly where the municipality and Broadlands had enjoyed the benefit of detailed consideration by a full bench.

This case clarifies the approach to special leave to appeal against interim and interlocutory orders in South African law. It confirms that the Constitutional Court's decision in Lebashe binds the Supreme Court of Appeal to apply the Zweni test and interests of justice when determining appealability of interim interdicts. The judgment reinforces that: (1) interim interdicts are generally not appealable unless they satisfy the Zweni test and interests of justice; (2) referrals to evidence are interlocutory and not appealable; (3) appeals lie against orders, not reasons for orders; (4) piecemeal appeals will ordinarily not be entertained; and (5) special leave requires both reasonable prospects of success and special circumstances such as substantial points of law or manifest denial of justice. The case also demonstrates the court's approach to interim measures in disputes involving essential services like sewerage, favoring practical interim solutions to preserve the status quo pending final determination.