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[2011] ZAGPJHC 235
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City of Johannesburg v Berger and Another (16296/2011) [2011] ZAGPJHC 235; 2019 (2) SACR 319 (GJ) (31 August 2011)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE NO:
16296/2011
DATE:
2011-08-31
In the matter between
CITY OF
JOHANNESBURG Applicant
and
BERGER,
CEDRIC First
Respondent
BERGER,
SHAUN Second
Respondent
JUDGMENT
SPILG; J
:
INTRODUCTION
1. This case commenced as
an unopposed application. Although the respondents (who will be
referred to as the Bergers, unless the
context requires otherwise)
subsequently filed a set of affidavits dealing with the factual
background to their occupation of the
property the matter remained
unopposed. An
ex tempore
judgment was delivered and I
indicated that the reasons would be amplified if necessary. I
consider it appropriate to do.
2. The City of
Johannesburg applies for an order requiring the Bergers to “
forthwith
cease”
utilising their property, situated along Corlett
Drive, in contravention of its zoning bye-laws. It seeks to buttress
the main order
with a number of complimenting restraining and
compelling orders.
3. The City relies
on the bye-laws promulgated in terms of the Johannesburg Town
Planning Scheme under Administrator’s
Notice 1157 of 1979 as
read with the Town-Planning and Township Ordinance no 15 of 1986
(“
the Ordinance”
). . It contends that the
property is being used as a veterinary clinic, rescue, rehabilitation
and re-homing centre for cats
and dogs, operating under the name
“
Kitty and Puppy Haven”
in violation of its
Residential 1 zoning status.
4. When the matter was
first called I expressed concern about the consequences the order
would have on the animals sheltered at
the haven. In particular I
wished to ascertain whether alternative shelter could be found or
whether animals, generally puppies
and kittens, would be euthanized
if the order sought was implemented without alternative arrangements
for their relocation. I therefore
postponed the application and
requested the City to secure the attendance of the Bergers at the
resumed hearing so that the court
could be informed of any
alternative arrangements that might be made to provide for the
animals if the order sought by the City
was granted and whether any
of the animals would be put down. I also requested the City to advise
whether the SPCA could provide
assistance.
5. On the adjourned date
Mr Weltz
appeared on behalf of the respondents. Although his
instructions were not to oppose the application it was submitted that
certain
facts should be brought to the court’s attention. They
were contained in an affidavit which I then received. The affidavit
was deposed to by Samantha Berger. She is respectively the wife and
daughter-in-law of the respondents and is the director and
founder of
Kitty and Puppy Haven. Her affidavit was supported by the
respondents.
6. A supplementary
affidavit was then filed by the City. It comprised a response and
included a supporting affidavit from the SPCA,
a petition from and
letters signed by residents as well as a letter from the store owner
of a local Pick ‘n Pay.
BERGER’S
AFFIDAVIT REGARDING THE HAVEN’S OPERATIONS
7. The affidavit
submitted by the Bergers revealed that over 200 young cats and dogs
were being sheltered at the Haven. Very few
adult dogs were on the
premises: They were limited to bitches still weaning puppies that may
have been abused or injured.
8. The Bergers had set up
the Kitty Haven during 2000 from premises in Parkwood for the purpose
of rescuing, rehabilitating and
finding homes for kittens and cats.
The initiative was extended in 2003 to include puppies and dogs.
Hence its present name.
9. Kitty and Puppy Haven
is a registered non-profit organisation as well as an approved public
benefit organisation for tax purposes.
It is part of the My Planet
Scheme. During 2004 the Haven moved from Parkwood to a
residential stand in Bramley and began
to receive far more animals in
need of care than the Bergers had previously anticipated. In 2007 one
of the applicant’s departments
advised that the Haven was
obliged to close down because it was situated within in a residential
area.
10. The Haven then
relocated to a family property situated in Corlett Drive. The
Corlett Drive property was a suitable
size and situated within an
ideal location; it bordered a park, was adjacent to a main road and
was in an area that also housed
a shopping centre and other small
businesses. This is where the Haven is now situated. The property was
also considered because
of its potential for re-zoning rights which
the Bergers then set about to obtain. The Corlett Drive property has
proved to be ideally
located for its intended purpose and the area it
is meant to serve.
11. The affidavit
explains where the animals are drawn from and that most residents who
are catered for by the Haven cannot afford
transport but come on foot
with their animals. The proximity of the Haven to Alexandra was
consequently essential to its operations
and for providing meaningful
assistance to distressed animals.
12. Despite the increase
in crime along that part of Corlett Drive The Haven has continued to
provide shelter for stray or abandoned
puppies and kittens brought in
by residents and which are in need of care. The animals under its
care are then fully vaccinated,
treated against rabies and
sterilized. The Haven adopts a “
no kill”
policy in
respect of animals brought to the shelter. Since April 2011 it has
also conducted a community veterinary clinic, under
a qualified
veterinarian. The clinic provides care on a free or affordable basis
to animal owners who are unable to pay private
veterinary fees. In
this regard it provides free rabies injections and other
vaccinations, attends to sick animals and distributes
free pet food
to those unable to afford it.
13. Over three thousand
animals have been treated, adopted or sterilized annually at The
Haven. The Haven addresses a vital public
need for the neighbouring
Alexandra community. Although it also manages an adoption
programme, which results in a thousand
animals annually being
successfully placed for adoption, The Haven focuses on providing
quality care for rescued animals and for
pets belonging to indigent
people. At the time the application was brought over 200 cats and
dogs were being cared for on the premises.
14. The clinic itself has
been approved by the State Veterinarian, the Department of
Agriculture and the South African Veterinary
Council. Moreover
the Haven receives the support of the community it serves. To this
end a recent letter from the Alexander
branch of the youth wing of a
national political party was produced. The letter confirms and
endorses the valuable contribution
made by The Haven to the residents
of Alexandra. The Bergers also claim that the shelter received
support from a national supermarket
chain. This claim will be
considered later.
15. It is therefore
evident that the central focus of the Haven is to provide an
invaluable and much needed service mainly for residents
of Alexandra
by rescuing, treating and finding homes for injured or abused
animals, and also by treating animals free of charge
as a service to
needy members of the community.
BERGER’S
AFFIDAVIT REGARDING REZONING APPLICATION
16. The Bergers had
applied for and claim that despite the passage of many years were
still awaiting the outcome of a rezoning application.
17. Their affidavit
reveals that prior to moving the Haven to its present location they
had engaged a firm of town planners, Steven
Jaspan and Associates
(“
Jaspan”
), which formally applied on their behalf
in July 2008 for the removal of restrictions on the property and its
rezoning. All necessary
processes were attended to and the
application lay open for inspection while contiguous property owners
were also duly notified.
18. On 15 October 2008
the Executive Director: Development Planning and Urban Management
addressed correspondence to Jaspan advising
that no objections had
been received. Subsequently on 22 October 2008 the Bergers were
advised that their rezoning application
would be forwarded to a
council planner for evaluation and preparation. A year later,
during October 2009, they were
advised that the application had
been eventually assigned to a council planner.
19. During July 2010 the
Bergers were approached by Mr Mario Di Cicco of Di Cicco and
Buitendach CC to finalise the application
for the simultaneous
removal of restrictions and rezoning of the property, it being
acknowledged, according to the Bergers, that
there had been an
unwarranted delay in the process. Nonetheless, in terms of the
mandate the Bergers were advised that they would
be responsible for
the associated costs.
20. Another year passed
and in July this year the Haven was advised by Di Cicco that a report
had been sent for "
final transmission
". At the
time of the hearing before me the Bergers were advised that Di Cicco
was in Italy until the 17
th
August and it was not possible
to obtain further information regarding the process.
THE CITY’S
RESPONSE
21. The City addressed
three issues; the progress of the Bergers’ rezoning
application, the attitude of the neighbours and
the assurances that
the SPCA could provide regarding the well being of the 200 animals if
the Haven was immediately required to
close down.
22. The application was
not opposed. Accordingly the court cannot apply the ordinary
Plascon
Evans Paint Ltd v van Riebeeck Paints Pty Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
test ( at 634 E to 635 C) which would otherwise have benefitted the
respondents. I am prepared to accept the City’s version,
save
in the one respect to which I will refer later.
23. The City confirms
that all the Departments that have responded do not object to the
rezoning. However the report of the Environmental
Health Department
is outstanding. It is contended that the delay in finalising the
application is attributed to the consultants
appointed by the Bergers
failing, since June 2009, to submit a site plan with consent
signatures from the surrounding neighbours
as had been called for by
the City. When Di Cicco replaced Jaspan as the new firm of town
planning consultants a request was made
on behalf of the Bergers to
keep the rezoning application on hold. It was only in response
to the City’s letter of
demand that Di Cicco in May 2011 sought
to revise the rezoning application. The City contends that at no
stage did the Bergers
indicate that they wished to operate from the
property a charitable rescue, rehabilitation and re-housing facility
for animals.
It was argued that the application had been motivated to
provide only for a veterinary clinic and associated rehabilitation
centre.
24. The City’s
supplementary affidavit also demonstrates that since September 2010
neighbours have objected to the excessive
barking and unpleasant
odours emanating from the property. The local Pick ‘n Pay
franchisor also confirms that he does not
support the Haven and
complains about the unbearable stench at times and the prevalence of
flies which he attributes to the Haven’s
presence. Although the
Pick ‘n Pay letter is not accompanied by an affidavit, neither
was the Bergers’ assertion that
such support existed.
Affidavits were however presented on behalf of the City by two
objecting neighbours. Their affidavits are
supported by the
inspections conducted by the City’s official which precipitated
the notices and the application before me.
25. It is therefore
evident that although the Bergers used the property as a sanctuary
for young animals, an application for rezoning
had been made at a
very early stage and there was no reason at that stage to believe
that it would not be granted. However by September
2010, if not
already by mid-2009, it would have been apparent that the rezoning
would be objected to by a number of neighbours.
Nonetheless it is
evident that the City should to be in a position to finally determine
the application shortly after Di Cicco’s
return.
26. Finally it is
necessary to consider the affidavit of the SPCA official. It is
couched in somewhat hesitant terms and adopts
a tempered tone.
Nonetheless it is evident that if an order is granted with immediate
effect then an unknown number of animals
will be euthanized. This was
confirmed when the SPCA senior official present in court could not
give an assurance that animals
would be euthanized nor could she
estimate how many might have to be put down. If regard is had to the
number of animals sheltered
at the Haven it is hardly surprising that
the SPCA cannot give such an assurance.
THE CITY’S
EXERCISE OF ITS POWERS
27. The City relies upon
section 42 (1)(c) of the Town-Planning and Township Ordinance no 15
of 1986. The Ordinance affords the
local authority a discretion to
direct that the landowner discontinue using the property in
contravention of a town-planning scheme
and to take down any
offending structure. The provisions of section 42 apply to land
situated within an authorised local authority’s
area of
jurisdiction. This is by reason of section 55 of the Ordinance.
However once the local authority issues a directive, as
occurred in
the present case, and it is not complied with then the landowner is
guilty of an offence under sub-section (5). See
also the penal
sanction under section 58(2) in respect of a contravention of the
provisions of an approved scheme.
28. Moreover under
section 58(1) a local authority is obliged to observe and enforce the
provisions of an approved scheme. It is
under this legislative
provision that the City exercises its power to approach a civil court
for recourse against an offending
landowner.
29. It must therefore be
accepted that the City has exercised its powers under the enabling
legislation and the Berger’s have
not sought to challenge that
decision on the basis of a legitimate expectation that they would be
allowed to maintain the animal
sanctuary until a decision was made.
30. Moreover a court
cannot second guess a decision taken by an administrative body to
exercise its powers in a particular way even
if it may not
necessarily have made the same decision, provided that the decision
taken is rational, procedurally regular and within
its competence.
Provided a decision is competently taken under section 42(1) to issue
a directive then it carries the added weight
of a specific criminal
sanction under section 42(5) of the Ordinance.
COMPETING INTERESTS
31. The Bergers’
rezoning application has lain with the City for some three years
without finality. The Bergers were
aware that they had to apply
for rezoning and would not be entitled to use the facility as an
animal shelter or veterinary facility
before the necessary
authorisation was obtained. They had also sought a delay in
finalising the application. Nonetheless,
the City is obliged to make
a decision on the rezoning. The City did not come out and say
unequivocally that the rezoning will
not be approved. Furthermore
no objection was raised prior to mid-2009 despite due notice to the
public. At that time the
Bergers would have believed that their
rezoning application would be successful.
32. In my view the
situation that has developed is of the City's own making. It is
obliged to act within the provisions of
Section 33 of the
Constitution and provide just administrative action. This includes
the duty to make decisions within a reasonable
time having regard to
the nature of the matter before it and to provide certainty. These
requirements appears to find their counterpart
in sections 56(8) to
(10) of the Ordinance, which obliges the local authority to notify an
applicant without delay of its decision
either to approve or postpone
its decision after investigating an application in the prescribed
manner.
33. In the present case
the Bergers did not close their eyes to the bye-laws or adopt a wait
and see attitude. Necessity drove them
to relocate the animals and
they selected an area which had rezoning prospects. This included a
period when there appeared to be
no objection despite publication and
notification of the application.
34. I accept that none of
this on its own permits a court to ignore legislation that requires
effective and prompt implementation
of remedies for bye-law
infringements. However what comes into reckoning is whether the
bye-law is to be enforced humanely where
life is threatened.
35. The need for decision
making and determinations within a reasonable period of time is
evident from the provision of Section
6(2) (g) of the Promotion of
Administrative Justice Act 3 of 2000 (“
PAJA”)
which allows judicial review for a failure to take a decision. The
City has failed to comply with its obligations in this regard
and the
court is faced with the effect of that failure upon the Haven and the
animals in its care, which effectively will require
the selection of
animals to be euthanatized if the order is to be implemented
“
forthwith”
as sought.
36. I must therefore
weigh the obligation to enforce a bye-law against the City’s
failure to comply with its constitutional
obligations, as given
expression in PAJA. If the City had complied with its obligations
then there would already have been a rezoning
(albeit one subject to
conditions) or a notification that the rezoning application was
refused.
37. In my view every
attempt has been made to explore an adequate alternative solution
created by the City's failure to comply with
its administrative
duties to secure just administrative action. There is no
adequate alternative centre and the animals cannot
be relocated under
the auspices of the SPCA without the risk of some being destroyed.
38. The question comes
down to whether we should sacrifice life, because of a failure to
consider an application made to the City
within a reasonable time,
particularly when such a decision is due imminently.
39. The values we aspire
to implicitly involve avoiding the ending of animal life
unnecessarily. Even though the paradoxes of slaughtering
for food
must be accepted as a reality, it is a far cry from the present
situation of killing very young animals.
40. The Bergers confirm
that they would only be able to re-house the adult dogs by 12
December 2011. Although the City accepts that
some time period is
required to attempt to find alternative shelter for the animals,
without consensus being reached it seeks the
immediate implementation
of the order sought. The preservation of life outweighs the
entitlement to immediately implement a bye-law,
particularly bearing
in mind that a rezoning decision is imminent, It is self
evident that there exists a less invasive and
less restrictive, yet
adequate remedy which can also take into account the
imponderable; ie., whether the City will rezone
the property: If the
City approves the rezoning there would be a needless destruction of
life. If it does not then the animals
can be removed within a
reasonable period of time.
41. In my view an
appropriate order is to do what is possible now pending the final
determination of the rezoning, namely to remove
those animals that
can be removed while ensuring that none will be euthanized .The Haven
can continue to provide treatment for
animals in a manner that can
take into account the complaints regarding barking, which is said to
emanate from adult dogs, and
also the concern about odour and general
hygiene.
PROTECTION OF ANIMALS
42. The competing
interests may also be considered by considering the consequences of
implementing the bye-law that may result in
a number of young
animals, which have already suffered and are undergoing
rehabilitation, being destroyed against the body of law
which gives
expression to our humanity.
43.
Domestic animals are objects of the law, mere chattels, which
are not accorded any right or specific protection under our
Constitution.
See the minority judgment of Cameron JA (at the time)
in
National Council of Societies for the
Prevention of Cruelty to Animals v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at paras [38] and [39]
44.
However the enquiry is not whether
animals have rights, since they do not under our common law, but what
our responsibility is towards
animals; and in this case, those which
we treat as pets under our control and which receive protection under
statute.
45.
Such an enquiry may ultimately resolve
itself by reference to the content of our humanity and whether it is
to be regarded both
as the foundational stone which lies at the
heart of our Constitutional rights and also as the expression of a
value system,
of which the inter-relationships between humans is a
manifestation but which transcends it.
46. This understanding of
humanity within our constitutional framework may have been touched
upon in
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
by Didcott J at para [177] when referring to the following extract
from Gubbay CJ’s judgment in
Catholic Commission for Justice
and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others
1993 (4) SA 239
(ZSC) at 247 I - 248 B). That case considered
the prohibition of inhuman or degrading punishment under the Zimbabwe
Constitution
in the following manner:
"
It
is a provision that embodies broad and idealistic notions of dignity,
humanity and decency. It guarantees that punishment.....of
the
individual be exercised within the ambit of civilised standards. Any
punishment.....incompatible with the evolving standards
of decency
that mark the progress of a maturing society, or which involve the
infliction of unnecessary suffering, is repulsive.
".
44
In
Makwanyane
Didcott J at para [178] and Kentridge AJ at para [196] cited the
celebrated statement by Stewart J in
Furman
v State of Georgia
[1972] USSC 170
;
(1972) 408 US 238
at 306 when describing the death penalty as:
“
.....unique
...in its absolute renunciation of all that is embodied in our
concept of humanity.”
This broader concept of
humanity as a value system underlying our legal foundation, finds
expression in national legislation concerning
animals. Firstly
section 3 of the Societies for the Prevention of Cruelty to Animals
Act, no 169 of 1993 (SPCA Act) includes
as the objects of the
National Council:
“
(c) to prevent
the ill-treatment of animals by promoting their good
treatment by man;
(f) to do all things
reasonably necessary for or incidental to the
achievement of the
objects mentioned in paragraphs (a) to (e)”.
45 The Animal Protection
Act no 71 of 1962 and the Performing Animals Protection Act no 24 of
1935 similarly provide for the care
of animals while
section 57
of
the
National Environmental Management: Biodiversity Act 10 of 2004
attempts to prevent the inhumane breeding, hunting and killing of
protected species by prohibiting “
a restricted activity”.
As appears from the judgment in
SA Predator Breeders
Association and Others v Minister of Environmental Affairs and
Tourism
[2010] ZASCA 151
at para
[25]
in June 2005 the
responsible Minister appointed experts to advise on drafting norms
and standards for professional and recreational
hunting because of
certain malpractices in the hunting industry “
particularly
through so-called ‘canned lion hunting’
”.
46 However for present
purposes it appears adequate to confine the enquiry to national
legislation such as the SPCA Act in regard
to the inhumane treatment
of domestic animals. The purpose of the predecessor to this Act, the
Prevention of Cruelty to Animals
Act 8 of 1914, was held by the Natal
Full Bench, per Miller J (at the time), while ”
not ... to
confer human status on animals it was assuredly part of its purpose
to prevent degeneration of the finer human values
in the treatment of
animals” .
Cameron JA’s minority judgment which
approved this case (at para [38] ftn 2) appears, with respect,
to remain unaffected
by the majority decision.
47
While
the entitlement of the City to enforce its bye-laws is self evident,
the evidence before the court confirms that if the order
is
implemented with immediate effect an indeterminate number of young
animals are likely to be put down. This would be contrary
to the SPCA
Act which has as its object, through the Council, the “
good
treatment by man”
of animals
and to prevent their “
ill
treatment”.
The unnecessary
killing of an animal would fall within the provisions of the
sub-section.
48 In the present
case the likely killing of some of the 200 animals would be
unnecessary and the object of the bye-law can
be achieved without the
inhumane killing of the young animals. This can easily be achieved by
delaying the enforcement of the order.
The delay in the enforcement
of orders for specific performance is not uncommon and finds as its
base the interests of justice.
There is nothing in the Ordinance
which precludes a court from delaying the enforcement of the bye-law
in the interests of justice,
particularly where a failure to do so
would result in the contravention of animal protection laws, laws
which in turn ought to
be broadly construed and applied by reason of
its foundational value based on humanity.
THE ORDER
49 The following
order was made:
a.
This matter is
postponed pending the outcome of the Simultaneous Removal of
Restrictions and Rezoning Application: Portion 64 of
724 Kew (the
“Rezoning Application”) and may be set down by the
Applicant on notice to the Respondents
b.
Pending the outcome
of the Rezoning Application:
i.
Kitty
and Puppy Haven shall with effect from 12
th
December 2012 cease to house adult dogs at Portion 64 of Erf 724
(“premises”);
ii.
All
adult dogs currently housed on the premises will be re-homed by the
12
th
December 2011;
iii.
No
adult dogs brought in for emergency treatment shall be kept on the
premises for more than 24 hours;
iv.
Pest
control will attend at the premises every 8 (eight) weeks.
c.
Once
the Rezoning Application has been finalised (including any review
proceedings), the provisions of paragraph 2 cease to have
effect and
Kitty and Puppy Haven will abide by the conditions of the Rezoning
Application.
d.
No
order as to costs.
DATES
HEARINGS:
26/07/2011, 12/08/2011 and 26/08/2011
ORDER:
31/08/2011
REVISED:
29/11/2011
LEGAL
REPRESENTATIVES
APPLICANT;
ADV MAGANO
MOJELA HLAZO PRACTICE
SCHINDLERS ATTORNEYS
RESPONDENTS:
ADV M WELZ on 12/08/2011
ADV D WHITTINGTON on
26/08/2011
EVERSHEDS