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[2016] ZASCA 67
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Educated Risk Investments 165 (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality and Others (308/2015) [2016] ZASCA 67; 2016 (6) SA 434 (SCA) (20 May 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 308/2015
DATE:
20 MAY 2016
Reportable
In
the matter between:
EDUCATED
RISK
INVESTMENTS
165 (PTY)
LTD
...................................................................................
First
Appellant
FIFTH
SEASON INVESTMENTS 99 (PTY)
LTD
...................................................
Second
Appellant
LAGERWEY
INVESTMENT
COMPANY
(PTY)
LTD
.................................................................................................
Third
Appellant
NEL,
NICOLAAS JACOBUS T/A
N
J NEL
DEVELOPMENTS
.......................................................................................
Fourth
Appellant
And
EKURHULENI
METROPOLITAN
MUNICIPALITY
..........................................................................................................
First
Respondent
LIDWALA
CONSULTING ENGINEERS
(SA)(PTY)
LTD
.........................................................................................................
Second
Respondent
REA
DIRA REFUSE SERVICES
CC
.......................................................................
Third
Respondent
Neutral
citation:
Educated Risk Investments 165
(Pty) Ltd v Ekurhuleni Metropolitan Municipality
(308/2105)
[2016] ZASCA 67
(20 May 2016)
Coram:
LEWIS, THERON, WALLIS and MATHOPO JJA and VICTOR
AJA
Heard
:
11 May 2016
Delivered
:
20 May 2016
Summary:
Town planning scheme –
interpretation thereof – dwelling house – what
constitutes – local authority proposing
to permit temporary
informal houses to be constructed on land zoned Residential 1 where
dwelling houses could be constructed without
further consent –
informal houses satisfied the zoning requirements – scheme also
empowered the local authority to
use land for purposes not in
accordance with zoning where it deemed it beneficial to the community
or surrounding area.
ORDER
On
appeal from:
Gauteng Provincial Division,
Johannesburg (Mabasele J, sitting as court of first instance)
The
appeal is dismissed with costs.
JUDGMENT
Wallis
JA (Lewis, Theron and Mathopo JJA and Victor AJA concurring)
Introduction
[1]
An informal settlement, known to its
residents as Everest or Gugulethu, is situated in Payneville
Extension 3 on the outskirts of
the town of Springs. It is roughly
triangular in shape and bounded on two sides by a mine dump and a
slimes dam and on the third
by a railway line and major road. It has
no potable water supply, no refuse removal, no sewage reticulation
system, no electricity
and no tarred roads. The slimes dam gives off
radon gas, a source of radiation, at levels that exceed acceptable
norms and pose
a threat to the health of the residents. It is one of
56 informal settlements in Gauteng that have been earmarked for
urgent attention.
It is the responsibility of the first respondent,
the Ekurhuleni Metropolitan Municipality (Ekurhuleni), within whose
area of jurisdiction
the settlement falls, to find means of
addressing these conditions. The primary source of its obligations is
the right of access
to adequate housing that the residents of the
settlement enjoy in terms of s 26(1) of the Constitution and the
obligation
of the state in terms of s 26(2) to achieve the
progressive realisation of that right. Those obligations are further
reflected
and given more detailed content in
Part 4
of the
Housing
Act 107 of 1997
. But it is rightly also concerned with the
residents’ right to dignity in terms of s 10 of the
Constitution and
their right to an environment that is not harmful to
their health and wellbeing under s 24
(a)
of the Constitution.
[2]
Ekurhuleni
is the owner of another property, Payneville Extension 1, situated
approximately a kilometre away along the boundary
road, which is some
63 hectares in extent and an approved township. As originally
approved it consisted of 756 erven, excluding
parks and streets, of
which all bar four were designated as Residential 1 in terms of the
Springs Town Planning Scheme, 1996 (the
Scheme). That zoning
permitted the erection of one dwelling house per erf.
[1]
It also permitted the sub-division of an erf provided that no portion
created by such sub-division would be less than ‘40%
of the
prevailing size of the surrounding erven’.
[2]
On 8 February 2012 and in the exercise of powers vested in
Ekurhuleni under s 92 of the Town Planning and Townships
Ordinance, 15 of 1986 (the Ordinance), the Acting Area Manager: City
Development approved the sub-division of a number of the erven
in
Payneville Extension 1 to create an additional 363 erven. As there
was no amendment to the zoning under the Scheme these additional
erven were all zoned Residential 1.
[3]
In
June 2011 Ekurhuleni commenced the construction of sewage and water
reticulation services on Payneville Extension 1. As part
of the work
it erected toilets on a number of erven. Its intention, once this
work was complete, was to permit a number of families
resident in
Payneville Extension 3 to move to Payneville Extension 1 and to erect
informal dwellings on each of the residential
erven for which a
toilet had been provided. This would enable remedial work to be done
on Payneville Extension 3 that would include
the erection of basic
houses, to which those residents could then return. Furthermore, as
funds became available from various sources,
Ekurhuleni intended to
undertake the further development of Payneville Extension 1 involving
the surfacing of roads, electrification
and the construction of
similar basic houses. But in the meantime the people moved from
Payneville Extension 3 would be living
in better and healthier
circumstances, until their return to Payneville Extension 3, or until
they were allocated houses and elected
to remain in Payneville
Extension 1.
[3]
[4]
Commendable as this may appear on the
surface, the appellants, three companies and an individual, Mr
Nicolaas Nel, who was the principal
deponent on all their behalves,
said that it was unlawful and sought appropriate relief to prevent
Ekurhuleni from proceeding to
implement their plans. They contended
that the further sub-division of the erven in Payneville Extension 1
was unlawful because
it was not directed at complying with the
Scheme, but was a device to circumvent it and to enable the
establishment of an informal
settlement on the property instead of a
residential development. They said that such use was inconsistent
with the zoning of the
property as Residential 1 and amounted to a
rezoning by stealth. Furthermore they contended that it would be
unlawful for anyone
to be permitted to occupy any part of Payneville
Extension 1 until there had been compliance with all of the
conditions attaching
to the initial proclamation of the township and
the approval of the further sub-division. These conditions related to
the various
matters that Ekhuruleni intended to leave until a later
date as and when funding becomes available.
[5]
The reason for the appellants adopting this
stance was that they owned properties in an adjacent township,
Strubenvale Extension
2. They claimed, although this was disputed and
was not in any way substantiated, to have spent about R100 million on
developing
the township for the purpose of providing formal housing
aimed at the lower and middle income groups. They said that since the
erection of toilets on Payneville Extension 3 they had had
numerous complaints from purchasers and persons who had previously
expressed interest in purchasing properties in Strubenvale Extension
2, and some of these had indicated that they would not purchase
properties there because of its proximity to an informal settlement.
The structures that had been built, that is, the toilets,
were
described in the heads of argument as ‘unsightly and
objectionable’ and were said to disfigure the area. It was
submitted that if this were permitted to continue it would derogate
from the value of their development and potentially cause them
enormous losses.
[6]
There was no via media between these two
views. Ekurhuleni wished to pursue its plans, in fulfilment of its
obligations to the residents
of Payneville Extension 1, by allowing
some of them to move to Payneville Extension 1 to erect their homes
there until Payneville
Extension 3 was rehabilitated and they could
be provided with formal housing. Resources were and are a problem and
precluded it
from immediately formalising the development of either
township, save in the incremental manner that they planned. The
appellants
for their part did not, and do not, want an informal
settlement on the neighbouring property. Their position was
summarised in
the heads of argument in the following terms:
‘…
if
the first respondent were moving the residents of Payneville
Extension 3 into brick and mortar houses it had already built on
the
property, and after due compliance with the sub-division conditions,
there would be no issue with the legality of [Ekurhuleni’s]
conduct.’
In
other words the appellants raised no objection to the development of
a formal, fully serviced township with conventional brick
and mortar
houses on Payneville Extension 1. Their objection was to it becoming,
albeit temporarily, an informal settlement lacking
such services.
Litigation
history
[7]
The appellants launched an urgent
application before the South Gauteng High Court, Johannesburg (the
High Court) on 7 November 2012.
It sought an interim interdict to
prevent Ekurhuleni from taking any further steps to implement the
sub-division approval or allowing
any person to occupy Payneville
Extension 1 pending the outcome of the claim for final relief. It
indicated that it would seek
the review and setting aside of the
decision to approve the sub-division and orders declaring the
erection of the toilets unlawful
and directing Ekurhuleni to demolish
them. An interim order was granted by Lamont J on 5 December 2012
and extended from
time to time thereafter. In the result Ekurhuleni’s
plans have been blocked for more than three years.
[8]
A number of additional affidavits were
delivered to deal with developments while the proceedings were
pending. In an affidavit dated
17 October 2013 the appellants amended
their notice of motion to seek final relief in slightly amended
terms. The order they sought
read as follows:
‘
6.
Reviewing and setting aside the first respondent's decisions to
sub-divide the property and to approve of the sub-division of
the
property as set out in the first respondent's letter of approval
dated 8 February 2012.
7.
Alternatively
to 6, directing the first respondent to comply
with all the conditions applicable to the approval of the
sub-division of the property
as set out in the first respondent's
letter of approval dated 8 February 2012 and the annexures thereto
("the conditions").
8.
Directing the first respondent:
8.1.
not to use the property without complying with the conditions;
8.2.
not to allow any person to occupy or use any erf or portion of the
property prior to compliance by the first respondent with
the
conditions;
8.3.
not to erect or allow any person to erect any structure on the
property or any portion thereof contrary to the provisions of
the
Springs Town Planning Scheme of 1996 and the conditions;
8.4.
not to use or allow any person to use the property or any portion
thereof contrary to the provisions of the Springs Town Planning
Scheme of 1996.
9.
Declaring that the toilet structures erected by the first respondent
on the property are unlawful.
10.
Directing the first respondent to demolish and remove the toilet
structures on the property within 60 days of this order failing
which
the sheriff of this Court or his deputy is authorised and directed to
demolish and remove the structures at the cost of the
first
respondent.’
[9]
The application was argued before Mabesele
J early in 2014 and dismissed on 6 May 2014. The learned
judge granted leave
to appeal to this court on 25 March 2015. The
reason for the delay in hearing the application for leave to appeal
does not appear
from the papers. It was unfortunate given the
interests affected by that delay.
The
sub-division of Payneville Extension 3
[10]
Although it appeared from the amended order
that the primary relief they sought related to the further
sub-division of erven in
Payneville Extension 3, that appearance was
misleading. The argument in that regard depended upon the proposition
that the effect
of the sub-division was to rezone the property from
Residential 1 to either temporary or special use. Assuming that to be
so the
appellants’ complaint was twofold. First, no public
notice was given of such a change of use and no proper process
preceded
it. Second, as the further sub-division was to enable the
township to be used as an informal settlement in contravention of the
Scheme, under which it was zoned as Residential 1, it was effected
for an ulterior purpose and was hence unlawful.
[11]
The central pillar for this argument was
the proposition that the proposed use of Payneville Extension 1 was
inconsistent with its
zoning under the Scheme. The main issue in the
appeal was therefore whether Ekurhuleni’s intention to permit
occupation of
the individual erven in Payneville Extension 1 and the
erection on each erf of a structure to accommodate the family to whom
such
erf had been allocated would contravene the zoning of the
property. The structures to be erected, to which I will hereafter
refer
as ‘informal housing’, would be of a fairly
rudimentary nature, as is usually the case in informal settlements,
and
not intended to be permanent. What must be determined is whether
they would contravene the zoning of Residential 1.
Zoning
[12]
Clause 11.4 of the Scheme contains a table
with a variety of use zones and the uses to which properties falling
in those zones can
be put. Properties zoned Residential 1 may be used
for the erection of ‘dwelling houses’. That use does not
require
any further consent from the local authority. A ‘dwelling
house’ is defined in clause 3 of the Scheme as:
‘
A
single, free-standing dwelling unit and can include a “second
dwelling unit”.’
In
turn a ‘dwelling unit’ is defined as:
‘
An
interconnected suite of rooms which does not include more than one
kitchen, designed for occupation and use by a single family
and which
may also include such outbuildings and servants quarters as are
ordinarily incidental thereto.’
Although
unlikely to be relevant in practical terms to the residents of
Payneville Extension 1, the definition of a ‘second
dwelling
unit’ is as follows:
‘
A
dwelling unit on the same erf as a dwelling unit provided that the
architecture of both be the same and that the total coverage
does not
exceed the prescribed coverage defined in Clause 21.’
[13]
There is no doubt that the type of building
contemplated by the appellants of conventional bricks and mortar
construction, albeit
small, would constitute a dwelling unit as
defined and therefore a dwelling house for the purposes of the
Scheme. So the 40 square
metre RDP houses referred to in the papers,
with a bedroom, bathroom and combined sitting room and kitchen, would
qualify as dwelling
houses and can be built in an area zoned
Residential 1. It follows that both in terms of the original
sub-division of Payneville
Extension 1, with 752 Residential 1 erven,
and in terms of the further sub-division, with a further 363 erven
and a total of 1115
erven, it would be permissible for Ekurhuleni to
establish a large number of modest sized homes in the township. The
appellants
accept that if the homes were constructed of bricks and
mortar before people took occupation it could have no objection
either
to that occurring or to the sub-division.
[14]
Ekurhuleni’s stated intention was to
rehouse families from Payneville Extension 3 to individual erven in
Payneville Extension
1, and not to permit random and uncontrolled
ingress to an extent greater than that outlined above. That is not
disputed. Accordingly
the appellants’ complaint was confined to
an objection that the informal housing that would be constructed,
being informal
in character, materials and design and intended to be
temporary, would be impermissible in a Residential 1 zone. They would
not
constitute dwelling houses as contemplated in the Scheme.
[15]
There may be difficulty in reconciling the
formal nature and content of town planning schemes with the housing
needs of so many
South Africans. Town planning schemes are generally
speaking directed at the medium to long-term development of an urban
environment
and rarely, if ever, make express provision to
accommodate the incremental development of housing for the
disadvantaged in our
society as it becomes increasingly urbanised.
One of the characteristics of apartheid was chronic under-provision
of housing
for the vast majority of South Africans in our major urban
areas at a time when there was rapidly increasing urbanisation. Its
consequences were to be seen in the mushrooming of informal
settlements in and around urban areas that are still part of our
urban
landscape. Conventional town planning schemes, of which the one
before us in this case is an example, generally have no provisions
specifically directed at this situation or the interplay between
addressing these social issues and formal development of the urban
environment.
[16]
A rigid interpretation of such schemes,
viewing them through the prism of a developed society in which these
problems are largely
absent, is in my view unsuited to our
circumstances. And we have guidance from the Constitution itself that
such an approach is
inappropriate. Section 39(2) requires us when
interpreting legislation to do so in a manner that promotes the
spirit, purport and
objects of the Bill of Rights. That demands that
in construing the provisions of the Scheme that are in issue in this
case we must
do so in the light of the right of our citizens to
access to adequate housing, dignity and a healthy environment.
[17]
Informal
housing of the type Ekurhuleni intended to permit in Payneville
Extension 1 consists of homes constructed of various materials,
in
particular wood, corrugated iron and fibreglass sheeting, that
provide shelter to the occupants thereof. I can see no reason
why
these should not be described as dwelling houses, a compound
expression that incorporates a measure of tautology. The explanation
for this compound use may well be found in its definition in the
Concise
Oxford English Dictionary
,
[4]
which says that it is a legal usage referring to:
‘
a
house used as a residence rather than for business.’
The
need to combine the two words to indicate that a residence is
intended appears to flow from the fact that in English usage the
word
‘house’ may encompass something other than, or more than,
a purely residential building. It includes some institutions,
and a
number of buildings, which, while having some residential element,
such as a police station, a nursing home and a college
for the
provision of vocational training, are used for other purposes. In
various contexts the courts have regarded buildings of
that type as
houses or dwellings.
[5]
[18]
In
their ordinary sense as reflected in dictionary definitions, ‘house’
and ‘dwelling’ tend to overlap.
Thus in the
Shorter
Oxford English Dictionary,
[6]
the first definition of a ‘house’ is that it is:
‘
A
building for human habitation; a dwelling, a home;’
and
the corresponding definition of a ‘dwelling’ is:
‘
A
place of residence; a habitation, a house.’
In
combination it is said that a ‘dwelling house’ is:
‘
used
as a residence, not for business purposes’
and
a ‘dwelling place’ is:
‘
a
place of residence, an abode, a house’.
[19]
Little
point would be served by citing a number of definitions, as if the
problem of interpreting this expression in the Scheme
could be
resolved by weight of numbers. As with all exercises in
interpretation the words must be taken as the starting point and
construed in the light of their context and purpose and the dictates
of the Constitution.
[7]
The
purpose of looking at dictionary meanings is to demonstrate, as a
starting point for the exercise, that the type of informal
housing
that is contemplated can properly be regarded as ‘dwelling
houses’ as that expression is commonly understood.
The next
step in the process is to see whether the definitions quoted above
affect the meaning of the expression either by expanding
or by
confining it.
[20]
According
to the definition of ‘dwelling house’ in the Scheme it
must be a free-standing unit. That implies a single
building or
structure and reinforces the notion, flowing from the words ‘dwelling
house’, that residential premises
such as maisonettes, flats or
townhouse complexes may not be constructed in a Residential 1 use
zone.
[8]
The informal houses
that Ekurhuleni contemplates satisfy this criterion. They also
satisfy the requirement for a dwelling unit
that they will consist of
‘an interconnected suite of rooms which does not include more
than one kitchen, designed for occupation
and use by a single
family’. Many informal houses will consist of two rooms –
one bedroom and one where the family
eats, cooks and relaxes. That is
little more than the beneficiaries of RDP houses will have.
[9]
Some will be a little larger and may have one or two more rooms.
Doors and windows will be installed. A few will be single rooms,
but
I do not think that the reference to a ‘suite of rooms’
in the definition would exclude these. After all a large
open plan
house in accordance with a modern design would surely be recognised
as a dwelling house notwithstanding its open plan
design.
[21]
Both
on the ordinary meaning of dwelling house, and on an application of
the definitions in the Scheme, I see nothing that would
preclude
informal housing from being ‘dwelling houses’ as defined
in the Scheme. The suggestion in the heads of argument
that this
expression would only encompass structures built of bricks and mortar
was not pursued with any vigour in argument and
counsel accepted that
dwelling houses might be built of other materials. Many informal
houses are built of wood and corrugated
iron, as were many houses in
our major cities in the early days of urban development in this
country.
[10]
Modern materials
such as fibreglass sheeting increase the range of available
materials.
[22]
It
was argued that in referring to ‘dwelling houses’ the
Scheme contemplated structures having a degree of permanence
as
opposed to informal housing. There is undoubtedly force in this
contention, which highlights the point made earlier that the
Scheme
is broadly directed at situations of medium to long-term development
of urban areas rather than dealing with the massive
housing problems
that confront the poorest in our country. But against it is the fact
that the definition itself does not specify
that the dwelling house
must be a permanent structure or a building. Nor does it specify that
the dwelling house must be immovable.
Park homes are movable and not
made of conventional building materials such as bricks, but there is
no reason to think that they
may not be dwelling houses and it is a
matter of common knowledge that both in this country and elsewhere
they are used for that
purpose.
[11]
[23]
In my view neither the ordinary meaning of
the expression ‘dwelling houses’, nor the definition
sections of the Scheme
exclude from the ambit of that expression
informal housing consisting of individual homes of a temporary nature
and constructed
of a variety of materials, such as wood, fibreglass
or corrugated iron. Any doubt in that regard is dispelled by applying
the constitutionally
mandated rule of interpretation in s 39(2)
of the Constitution. To disqualify from our understanding of dwelling
houses the
structures, sometimes sturdy and complex and sometimes
rudimentary, in which a vast number of the poorest citizens of this
country
are compelled by their circumstances to live, is not in my
view in accordance with the spirit, purport and objects of the Bill
of Rights and particularly those provisions of the Bill of Rights
identified at the outset of this judgment.
[24]
Once
that conclusion is reached the foundation of the appellants’
argument is destroyed. Payneville Extension 1 is a township
that has
been divided into erven and zoned Residential 1 under the Scheme. It
is therefore permissible in terms of the Scheme for
a single dwelling
house to be erected on each erf in the township.
[12]
That is what the Scheme permits and that is what Ekurhuleni proposes
to permit.
Non-fulfilment
of conditions
[25]
As a second string to their bow the
appellants advanced an argument that it would be unlawful for
Ekurhuleni to permit people to
occupy erven in Payneville Extension 1
until all the conditions attached to the original approval of the
township and the further
sub-division thereof had been fulfilled. For
this argument reliance was placed upon s 115(1)
(a)
of the Ordinance. That provides:
‘
Where
the Administrator or an authorised local authority has, in terms of
the provisions of any law, imposed a condition relating
to a township
or an erf in a township:
(a)
the local authority within whose area
of jurisdiction the township is situated shall observe the condition
…’
[26]
When Payneville Extension 1 was approved
the approval was made subject to a number of conditions of which
clauses 4 and 6 were referred
to in argument. The former clause
obliged the developer to construct and maintain the streets in the
township until that task was
taken over by the council and the latter
required the township developer to fulfil the obligations in respect
of the provision
of water, electricity and sanitary services and the
installation of systems therefor as agreed between it and the
council. The
references to ‘the council’ in these
conditions were references to the then Springs City Council to which
Ekurhuleni
is the successor. Furthermore Ekurhuleni has taken the
place of the original developer and is therefore the party obliged to
fulfil
these conditions.
[27]
In addition to the original conditions
imposed in relation to the development of Payneville Extension 1 as a
township, when the
further sub-division was undertaken a number of
additional conditions were imposed, to which the approval was made
subject. These
related to the provision of various services, such as
electricity and water; the provision of roads and steps for dealing
with
stormwater runoff; and conditions dealing with dolomite risk
management.
[28]
While Ekurhuleni has provided water
reticulation and sewerage disposal in Payneville Extension 1, it has
not formed or surfaced
the roads and sidewalks, including taxi ranks,
nor has it provided an electricity supply or street lighting. Its
approach is to
provide for these matters incrementally as and when
finance becomes available. In the meantime it said that those who
move to Payneville
Extension 1 would at least be better off than if
they stayed in Payneville Extension 3. The appellants, for their
part, argued
that this approach was impermissible. They contended
that before anyone could be permitted to take up residence in
Payneville Extension
1 all of these conditions had to be fulfilled.
[29]
The appellants’ argument wrongly
conflates the obligations of Ekurhuleni when it develops the township
of Payneville Extension
1 and disposes of lots in that township, and
its present entitlement to use the property as it stands before such
development takes
place. Although permission to lay out and develop a
township on the property known as Payneville Extension 1 has been
granted and
the township has been declared to be an approved
township, Ekurhuleni is not under any obligation to proceed with that
development.
It is perfectly entitled to allow the land to lie idle,
or to change its intentions and propose a different development
entirely,
or to postpone development until the necessary funds are
available. It is not in the meantime precluded from using the land
provided
it does so in accordance with any applicable town planning
scheme and the title conditions attaching to the property.
[30]
It follows that the appellants’
argument is misconceived. As matters stand at present, Payneville
Extension 1 is a single
property almost entirely zoned Residential 1,
in respect of which there is an approved Surveyor-General’s
diagram showing
its potential division into a number of erven. Under
the Scheme each of those erven may be used for a single dwelling
house to
be occupied by a single family. For the reasons set out
earlier in the judgment this use is in conformity with the Scheme. It
is
consistent with what will happen when the township is established,
but it does not involve the taking of steps towards that
establishment
and the transfer in due course of the individual erven
to purchasers. Nor does it involve any breach of the prohibition in
section
67(1) of the Ordinance on concluding contracts for the sale,
exchange, alienation or disposal of the erven in the township or the
grant of an option to that effect. Before any of that can be done the
conditions upon which the township was declared an approved
township
must be met, but that stage has not yet been reached. For the present
Ekurhuleni proposes to do nothing more than use
its own property in a
manner that conforms to the Scheme.
Requirements
of the Council for Geoscience
[31]
While this issue may strictly have been
dealt with above, together with the other conditions imposed upon the
development of the
township and its further sub-division, it warrants
a brief separate mention in view of the fact that it bears upon the
health,
safety and well-being of potential residents of Payneville
Extension 1. The township is underlain, as is much of the East Rand,
by dolomite. In order to satisfy the requirements for the
establishment of a township on such land the Council for Geoscience
required a dolomite stability investigation to be undertaken. Its
purpose was to assess the stability of the site with respect to
its
potential for sinkholes to emerge and to comment on water management.
A firm of engineering geologists, M J van der Walt Engineering
Geologists CC, conducted such an investigation and its report formed
part of the papers. In approving the further sub-division
of the
township the Council for Geoscience required Ekurhuleni to comply
with the recommendations in the report. That condition
was confirmed
by Ekurhuleni.
[32]
The appellants argued that there was no
compliance with the Van der Walt report’s recommendations. They
focussed in particular
on the foundations for the toilets that had
been erected on the site in preparation for the proposed new
residents. These were
about one metre square. The appellants claimed
that they were required to have reinforced concrete raft foundations
designed to
span a five metre loss of support. In doing so they
relied upon a statement at the end of the report that the foundation
design
that should be implemented should make provision for
foundations of that type. They urged that in the interests of the
safety of
those who would come to live on the site such foundations
needed to be provided.
[33]
A proper reading of the report revealed
that this was wholly incorrect. The Van der Walt report divided the
township into two sections
referred to as Zone A and Zone B. The
recommendation in respect of reinforced concrete raft foundations
related only to Zone B,
where there was a medium inherent risk of the
development of large sinkholes. In Zone A the report concluded that
there was ‘little
chance for erosive forces to develop’.
It accordingly concluded that in this zone only basic water
precautionary measures
needed to be implemented for development to
proceed.
[34]
The perceived risk was therefore confined
to Zone B. Ekurhuleni said in its affidavits that it did not intend
to permit anyone to
reside in this portion of the township and
undertook to demolish those toilets that had been erected in that
zone. It must be accepted
that they will comply with this undertaking
and with other undertakings contained in the papers. Among these was
the provision
of an attenuation dam to prevent stormwater from the
township posing any risk to adjacent properties in Strubenvale
Extension 2.
The point was accordingly raised on an incorrect
appreciation of the facts and is without merit.
A
hearing
[35]
Although not specifically raised in the
affidavits the appellants argued that Ekurhuleni’s proposal was
of such a nature as
to impose an obligation to conduct hearings and
undertake a public process in which all affected parties would be
able to have
input, both for and against the proposal. I do not think
this argument was open to the appellants at this stage. The only
reference
in the papers to a right to a hearing and a public process
was in the context of its initial contention that the implementation
of the proposal amounted to an amendment by stealth of the zoning of
Payneville Extension 1. Once that was shown to be without
foundation
it was not permissible to raise it in a wholly different context
where Ekurhuleni had not had any opportunity to deal
with the matter
on the facts. I am particularly concerned in that regard by the fact
that the tender for the construction of the
toilets was let in 2010
and an interview with a ward councillor described the project as one
that had been in the pipeline for
a number of years. It may well be
that had the point been raised earlier and directly that there would
have been evidence on the
extent of public participation in the
process leading up to the local authority adopting this approach to
the problems of Payneville
Extension 3.
Conclusion
[36]
The allegations by the appellants that
Ekhuruleni has acted and intended to act in an unlawful manner have
not been substantiated.
That alone would serve to dispose of the
appeal. However, even if in implementing the proposal there had been
in some respect a
departure from the provisions of the Scheme, it
would not in my view have been unlawful. The reason is that clause 32
of the Scheme
expressly authorises the local authority to depart from
it and to use any property in any use zone for a purpose empowered by
law
and which it deems beneficial to the community or the surrounding
area. The clause reads:
‘
Nothing
in this Scheme shall be regarded as prohibiting the Local Authority
from erecting, maintaining and/or maintaining and/ or
using any
building or property in any use zone for any purpose empowered by it
by virtue of any law, and which it deems to be beneficial
to the
community or surrounding areas.’
[37]
No
party referred us to this provision, but it appears to be of prime
importance in considering this dispute. I can see no reason
why it
should not be given effect on its terms. Provided it is satisfied
that it will be beneficial to the community to do so,
it empowers the
local authority to authorise the use of property in a manner other
than that provided in the Scheme. That is appropriate
given that the
local authority is the primary planning authority in regard to local
planning.
[13]
Counsel was
unable to suggest any other interpretation of this clause. So, even
had the implementation of Ekurhuleni’s plans
for Payneville
Extension 1 in some respect involved a departure from the use
provisions of the Scheme, that departure was one that
it was entitled
to authorise. For that reason also the appeal must fail.
[38]
In the result the appeal is dismissed with
costs.
JUSTICE
M J D WALLIS
JUDGE
OF APPEAL.
Appearances
For
appellants: M van R Potgieter SC (with him D Watson)
Instructed
by: Smit Sewgoolam Incorporated, Johannesburg
McIntyre
& Van der Post, Bloemfontein
For
first respondent: J C Uys (with him E Sithole)
Instructed
by: Matsemela Krauses & Ngubeni Inc, Johannesburg
Lovius-Block,
Bloemfontein.
[1]
Clause 19 of the Scheme.
[2]
Clause 19.3(i) of the Scheme.
[3]
The plan appears to have been developed in conformity with the
concept of incremental housing.
[4]
Concise
Oxford English Dictionary
(12
ed, 2011) at 446 sv ‘dwelling house’.
[5]
By way of examples, the chapter house of a cathedral or monastery is
a place for the holding of meetings, not a place of residence,
and
the House of Bishops is a section of the General Synod of the
Anglican Church. Perhaps the best-known reference is to the
Houses
of Parliament consisting of the lower house – the House of
Commons – and the Upper House – the House
of Lords. As
to the cases see
Stroud’s
Judicial Dictionary of Words and Phrases
(7
ed, 2006) Vol 1, pp 796-800, sv ‘dwelling-house’. These
cases illustrate that context is central to interpretation.
That
explains why in
Chelsea
Yacht and Boat Co Ltd v Pope
[2001]
2 All ER 409
(CA) a houseboat leased under a residential lease was
held to be a chattel and not a dwelling-house, while in
Nicholls
v Wimbledon Valuation Office Agency
[1995]
R V R 171
a floating home was held to be a dwelling.
[6]
The
Shorter Oxford English Dictionary on Historical Principles
(6
ed, 2007) Vol 1 at 1285 sv ‘house’ and at 783 sv
‘dwelling’.
[7]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18;
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
2014 (2) SA 494
(SCA) para 12.
[8]
See for example
Cliffside
Flats (Pty) Ltd v Bantry Rocks (Pty) Ltd
1944
AD 106
at 120 and
S
v Jewell and Another
1965
(1) SA 863 (N).
[9]
Ekurhuleni proposes to build houses that are 40 square metres in
extent, with one bedroom, one bathroom and one open plan room
to
serve as a lounge and kitchen.
[10]
In
Transvaal
Consolidated Land and Exploration Co Ltd v Black
1929
AD 454
at 461 Wessels JA referred to the fact that ‘in so many
parts of Johannesburg’ houses were constructed of these
materials
and contrasted it with the requirement that house built in
Parktown were required to be built of either brick or stone,
although
they would have corrugated iron roofs.
[11]
In
Makins
v Elson
[1977]
1 WLR 221
a jacked-up caravan, connected to water, electricity and
telephone was held to be a dwelling-house. The Scheme contains a
definition
of a ‘mobile dwelling unit’ but that is only
relevant in relation to temporary use in caravan parks and does not
bear directly on the problem at hand.
[12]
The definition of ‘erf’ in the Scheme includes any erf
shown on a plan approved in terms of the
Land Survey Act 8 of 1997
.
An approved Surveyor General’s diagram forms part of the
papers in respect of the township layout when originally approved.
The papers are silent on whether such a diagram exists in respect of
the layout following upon the further sub-division, but
no point has
been made of the absence of such a diagram, which is in any event
easily remediable.
[13]
Schedule 4, Part B of the Constitution.