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[2011] ZAGPJHC 204
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City of Johannesburg v Horizon Bay Investments (Pty) Ltd and Another (30293/11) [2011] ZAGPJHC 204 (8 December 2011)
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
:30293/11
DATE
:08/12/2011
CITY OF JOHANNESBURG
…................................................
Applicant
and
HORIZON BAY INVESTMENTS (PTY) LTD
....................
1
st
Respondent
FAIRWISH PROPS 9 (PTY) LTD
.....................................
2
nd
Respondent
J U D G M E N T
WILLIS J
:
[1] The applicant seeks an order directing that the respondents
forthwith cease to conduct noxious related activities, in particular
panel beating and spray-painting of motor vehicles on erwen 15 and 16
of Longmeadow Business Estate, Extension 1, Township Registration
Division IR, province Gauteng, situate at 49 and 47 Angus Crescent,
Longmeadow Business Estate, Extension 1.
[2] This is an unusual matter inasmuch as it is common cause that the
respondents are in fact spray-painting on the property concerned.
It
is also common cause that it is a matter of public knowledge that the
applicant intended to prohibit business of the kind conducted
by the
respondents on the particular property. This much appears from a
document which is styled "final conditions of establishment,
Longmeadow Business Estate, Extension 1, 31 October 2011".
[3] The difficulty for the applicant is that, despite its good
intentions, it failed properly to gazette a prohibition in terms
of
any ordinance that prohibits the activity in question. As Mr
Hollander
, who appears for the respondents, correctly
submitted, in order to succeed the applicant has to show that in
terms of Section 125
of the Town Planning and Townships Ordinance No.
15 of 1986 there has been a proper proclamation not only approving
the particular
township but also prohibiting the type of activity in
question.
[4] It may well seem that the respondents have succeeded in this
matter on a very technical basis but it needs to be borne in mind
that, at common law, one has a right to do whatever one likes on
one's property provided that that activity is not prohibited in
terms
of the common law (in other words one is not entitled to commit a
murder on one's own property). A technical, strict approach
has to be
adopted by the court where there are restrictions prohibiting
activities of the kind in question. I record that I have
sympathy for
the applicant in this matter.
[4] Counsel for the applicant argued, over and over again
ad
nauseam
,
yesterday that if one reads notice 8188 of 2000
in respect of the Edenvale/Modderfontein Metropolitan Local Council,
and notice
8189 relating to the declaration of an approved township
in the Longmeadow Business Estate, Extension, together with the final
conditions of establishment referred to earlier, dated 31 October
2000 there was in fact a statutory prohibition. Unfortunately,
despite my inviting Mr
Magano
several times to show where,
pertinently, there was the necessary connection made in the
proclamation as a matter of law, he was
unable to do so. Yesterday
afternoon the court granted him an indulgence, affording him an
opportunity to consult with the legal
advisors for the City of
Johannesburg to have one last attempt to show me why the interdict
should be granted.
[5] To my surprise, and having further agreed to stand the matter
down not only from 10:00 until 11:30, at 11:30 this morning,
I was
informed by his opponent that Mr
Magano
was not in court
because he was in another court, the urgent court. That is simply
not good enough. That is not how counsel conduct
themselves. I am
now delivering judgment at 12:55 despite repeated pleas from Mr
Hollander
that I delay giving my judgment in order to enable
Mr
Magano
to attend this court, he is still not here.
[6] In the last week of the court year I do not have time to sit
around waiting for counsel to deign to grace the court with their
presence. I disapprove.
[7] In the result there can be only one result in this matter. It is
that the application is dismissed with costs. That is the
order of
the court.
[8] Immediately having given judgment in this matter, Mr
Hollander
applied for the costs previously reserved to be awarded to the
applicant. This application is permissible as there had not
previously
been an address on costs. That can always be done after
the judgment. I can see no reason in the circumstances why the
respondent
should not succeed with costs. The costs order that I have
granted is to include all costs previously reserved.
[9] The court of the court is thus that the application is dismissed
with cots, which costs are to include all costs previously
reserved.
Counsel for the Applicant: Adv T J
Magano
Attorneys for the applicant: Mojela Hlazo
Counsel for the Respondents: Adv L.
Hollander
Attorneys for the Respondents: Phillip Silver Seven Associates
Date of hearing: 7 December 2011
Date of judgment: 8 December 2011