The main dispute between the parties relates to the construction and completion of a main stormwater drainage system that the mall owners had agreed to erect on behalf of the City at an estimated cost of R22million.
The City accepted that the physical buildings and all services at the shopping centre had been completed, but it was not willing to issue the final certificate of occupancy as the stormwater drainage system had not been completed.
The City said the system - which will serve about 1000 households and numerous businesses around the shopping centre - constituted infrastructure “incidental to the building” (the mall) and it can thus not issue a final certificate.
This, while the Jean Crossing Shopping Centre had been occupied since 2015 and the City levying its full quota of rates and taxes, services charges, as well as water and electricity charges.
The mall is situated between the N14, Jean Avenue and Rabie Street, and lies directly below the Gautrain rail. It was established to meet the shopping needs of commuters and residents, providing everyday essentials from grocery shopping to restaurants and clothing retailers.
Centre co-owners - Egan Property Group, Jean Avenue Village, Rapfund Investments and Luvon Investments - turned to the Gauteng High Court, Pretoria, to force the City to issue the certificate.
Judge Leicester Adams ordered the City to, within 14 days, decide whether or not to issue the certificate. If it decided to do so, the certificate had to be delivered within seven days. In the event of it declining to issue it, the City had to furnish the owners with full reasons for the refusal.
When the applicants issued the City in 2011 with their application for the development of a township on the properties where the shopping centre was subsequently built, it objected on the basis that “the existing stormwater system in Rabie Street is insufficient and must be upgraded”.
An integral part of the establishment of the township and the development of the mall, as approved by the City, was that the applicants had to construct a main stormwater drainage system to cater for the centre as well as for the surrounding area.
In terms of the agreement, the applicants had to construct the system and the City was to contribute about R20m towards the system. This huge project had not yet been completed and when the centre opened, a temporary occupancy certificate was issued.
But the City refused to issue the final certificate as it said it was under no legal obligation to do so, until the applicants had honoured its side of the bargain by building the stormwater drainage system.
The applicants said this was an extremely large undertaking, which was for the general benefit of the entire area, and it would take some time. The applicants said they never understood that this project would be linked to the building and the operation of the mall.
They said as they understood the agreement, the enlargement of the stormwater system was an additional service not linked to the development of the mall, but aimed at alleviating a severe stormwater problem in the larger area.
The court was told that following the construction of the mall, it was given the green light on all aspects of quality control and adhering to the building regulations. The only outstanding issue was the stormwater system.
The judge said the approach by the City was not sustainable as it was agreed that the completion of the drainage system had no impact on the shopping centre. “The property (the mall) had been occupied for more than a year by the time the applicants had filed this application and the City has been levying its full quota of charges the stormwater drainage system within the boundaries of the shopping centre has also been completed.”
The judge said the City could not withhold the certificate simply because of inadequacies in its drainage system for the area.