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[2015] ZASCA 18
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Trumper Trading 166 CC v Kouga Municipality (795/13) [2015] ZASCA 18 (18 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 795/13
In
the matter between:
TRUMPER
TRADING 166
CC
...................................................................................
Appellant
and
KOUGA
MUNICIPALITY
.......................................................................................
Respondent
Neutral
citation
:
Trumper
Trading v Kouga Municipality
(795/13)
[2015] ZASCA 18
(18 March 2015)
Coram:
Maya, Cachalia, Saldulker JJA and Van Der Merwe
and Mayat AJJA
Heard:
17 February 2015
Delivered:
18 March 2015
Summary:
Land Use Planning Ordinance 15 of 1985 –
whether municipal zoning scheme regulations permit the operation of a
bottle store
from premises zoned as ‘special business’
without the municipality’s further consent.
ORDER
On
appeal from:
Eastern
Cape
High
Court, Grahamstown (Schoeman and Roberson JJ sitting as court of
appeal):
The
appeal is dismissed with costs.
JUDGMENT
MAYA
JA
(CACHALIA, SALDULKER JJA, and VAN
DER MERWE and MAYAT AJJA concurring):
[1]
The central issue in this appeal is whether the Jeffrey’s Bay
Municipality: Zoning Scheme Regulations (the regulations),
[1]
permit
the operation of a bottle store from premises zoned as ‘special
premises’ without the special consent of the
respondent (the
municipality). The question arose in an appeal brought before the
Eastern Cape High Court, Grahamstown (Schoeman
and Roberson JJ)
against an interdict granted by the magistrate, Humansdorp (Mr FJ Van
Zyl) which prohibited the appellant from
conducting the business of a
bottle store from its premises. The high court held that municipal
consent is necessary. This appeal,
brought with the leave of this
court, challenges that decision.
[2]
The appellant is a close corporation and sole proprietor of a bottle
store which it operates on Erf 36, Paradise Beach, Jeffrey’s
Bay (the premises) in terms of a liquor licence granted to it by the
Eastern Cape Liquor Board in November 2008.
[2]
The
regulations are applicable to the zoning and land use rights of the
premises. In October 2008, the appellant’s former
member
applied to the respondent for special consent for the use of the
premises and the buildings thereon as a bottle store, supermarket
and
coffee shop.
[3]
The municipality refused the application ‘due to the objections
received from surrounding property owners’. As it
turned out,
the appellant had in the meantime commenced the business of a bottle
store without municipal consent and was selling
liquor from the
premises. When this came to the municipality’s attention,
it directed the appellant to cease operating
the bottle store.
However, the appellant continued to trade whilst making further
unsuccesful attempts until late in 2010, to obtain
the consent. On 16
March 2011 the municipality instituted proceedings in the
magistrate’s court to interdict the appellant
from trading as a
bottle store without the necessary consent.
[4]
The municipality’s application was successful, as was its
opposition to the subsequent appeal in the high court. There,
the
appellant argued, inter alia, that on a proper interpretation of the
relevant zoning scheme regulations, the zoning of the
premises as a
‘special business’ brought the bottle store within the
ambit of ‘primary use’ businesses
which are conducted
without the municipality’s special consent. This was so, it
contended, because this class of businesses
included restaurants and
licensed hotels which are more offensive than a bottle store as they
allow the consumption of liquor on
their premises. It would thus make
no sense to require an off-sales bottle store, and not these other
businesses, to obtain special
consent to trade. And socio-economic
factors, such as the safety and welfare of the community were
irrelevant considerations as
they were taken into account when the
initial zoning detemination was made
[3]
and
when the liquor licence application was considered. As indicated
above, none of these submissions found favour in the high court,
hence this appeal.
[5]
On appeal before us, the appellant’s case narrowed to one
ground. It contends that by virtue of the zoning applicable
to the
appellant’s premises as ‘special business’ in the
regulations no consent is required to conduct the business
of a
bottle store. And because ‘special business’ is defined
to include ‘shops’ as well as ‘similar
uses’
a bottle store is a similar use as contemplated in the definition.
The appellant thus did not need the municipality’s
consent to
operate the bottle store for which it has a valid liquor licence, so
went the argument.
[6]
The municipality’s power to regulate land use planning within
the Jeffrey’s Bay area of jurisdiction derives from
the Land
Use Planning Ordinance 15 of 1985 (LUPO), in terms of which the
regulations are promulgated. According to s 11 of LUPO,
the general
purpose of a zoning scheme (and the regulations) is
to
determine and provide for control over land use rights and over the
utilisation of land in the area of jurisdiction of a local
authority.
Section 39(1) obliges local authorities to comply with and enforce
compliance with LUPO itself and the provisions incorporated
in a
zoning scheme in terms thereof. In terms of s 39(2), no person
may contravene or fail to comply with the provisions
incorporated in
a zoning scheme or conditions imposed in terms of LUPO. And s 46(1)
makes such contravention or failure to comply
an offence.
[7]
The zoning, ie reservation of an erf for a specific use or uses,
‘special business’, which is applicable to the
premises,
is defined in the regulations as meaning ‘
a
site or building or structure on or in which business is conducted
and includes shops, offices,
[4]
financial
institutions or restaurants or sites, buildings or structures for
similar uses, but does not include places of assembly,
[5]
institutions,
[6]
public
garages,
[7]
industries
[8]
or
noxious uses’.
[9]
[8]
Part III of the regulations incorporates Table A which indicates the
purpose for which land may be used in the various zones
[10]
that
it lists. According to the table, land and buildings thereon either
have ‘primary use’,‘secondary use’
or
‘consent use’. And
a
‘special business’ zoning has three use rights: (a)
primary use which includes special business, warehouse,
[11]
service
station
[12]
and
licensed hotel;
[13]
(b)
secondary use, which includes general residential buildings,
[14]
place
of assembly,
and
place of instruction,
[15]
(irrelevant
for present purposes); and (c) consent use which includes all uses
other than those mentioned in (a) and (b), excluding
noxious uses.
Under the ‘special business’ zoning, the municipality’s
special consent is
required
for all uses other than those categorised under primary uses.
[9]
Of immediate relevance, the regulations define ‘bottle store’
as ‘a shop in which mainly alcoholic beverages
are sold in the
retail trade and includes an off-sales facility which is under the
same management as a licensed hotel’.
‘Shop’, on
the other hand, is defined as ‘a site or building, or portion
of a site or building, utilised or intended
to be utilised for the
operation of a retail business, and includes a licensed
restaurant
[16]
and
a workshop
[17]
on
the same premises, which is connected and is incidental and
subordinate to the retail business, but does not include a service
or
filling station, bottle store, pub/tavern,
[18]
public
garage or industry’. Notably, a bottle store is expressly
excluded from the definition of a shop.
[10]
The question then is whether it is a ‘similar use’ to a
shop as contemplated in the definition of ‘special
business’
as the appellant contends it is. The words ‘similar use’
are not defined in the regulations. Counsel
for the appellant
submitted that in ordinary parlance, ‘similar’ means ‘of
the same kind in appearance, character
or quantity without being
identical; having a marked resemblance or likeness’.
[19]
Relying
on this meaning, he argued that a bottle store is distinct from a
‘shop’ as defined, but nonetheless bears
a close
resemblance and is similar to it in the manner envisaged in the
definition of ‘special business’. We were thus
urged to
find that the wide language of the definition of shop, and
particularly the use of the word ‘includes’, suggest
an
intention to enlarge the meaning of the categories of business that
would constitute ‘similar use’ to that of a
shop. And
there is thus no reason logically not to include a bottle store in
the category that would fall within such similar usage,
so it was
argued.
[11]
The appellant’s contentions seem attractive at first blush. I
accept that ordinarily a bottle store would fall within
the category
of similar uses to that of a shop. But this conclusion ignores the
admissible context provided by reading the relevant
provisions in the
light of the regulations as a whole.
[20]
As
indicated above, a ‘bottle store’ is expressly defined in
the regulations. It is also expressly excluded from the
definition of
a ‘shop’. In my view it is highly unlikely that the
legislature would exclude a bottle store expressly
from the
definition of a shop but then allow it under the category of similar
uses.
[12]
There are other indicia in the regulations that suggest that a bottle
store is not a similar use to that of a shop. Clause
4 of Part 1V of
the regulations deals with the development parameters and land use
restrictions applicable to each use right which
are not attached to
a specific zoning and will change according to the use rights allowed
in the zoning. Clause 4.6.1 contains
the definition of ‘bottle
store’ set out above. Clause 4.6.2 covers the relevant land use
restrictions and provides
that ‘[t]he land use restrictions
applicable to a shop … will apply if a bottle store is allowed
in the restricted
business zone and
the
land use restrictions applicable to special business … will
apply if allowed in the special business zone’
.
(Emphasis added.) The use of the words ‘if allowed’ amply
demonstrates that a zoning of a ‘bottle store’
in a
‘special business’ zone does not automatically endow it
with primary use status and discharge its obligation to
seek
municipal consent.
[13]
In my view, the meaning which the appellant seeks to ascribe to the
definition of ‘special business’ does not find
support in
the regulations. In the circumstances, the appellant is not permitted
to conduct the business of a bottle store without
the municipality’s
consent. The decision of the high court was correct. The appeal must,
accordingly, fail.
[14]
In the result, the following order is made.
The
appeal is dismissed with costs.
____________________
MML
Maya
Judge
of Appeal
APPEARANCES
APPELLANT:
JD Huisamen SC
Slabbert
& Rossouw Attorneys, Jeffrey’s Bay
Bock
& Van Es Attorneys, Bloemfontein
RESPONDENT:
JJ Nepgen
CW
Malan Attorneys, Jeffrey’s Bay
Phatshoane
Henney Attorneys, Bloemfontein
[1]
Promulgated
in terms of s 8 of the Land Use Planning Ordinance 15 of 1985
(LUPO), and published in GN 92,
GG
403,
28 May 1999.
[2]
Reference
Number. 13836.
[3]
In
terms of s 36 of LUPO which, in addition to the safety and welfare
of the community concerned, requires the consideration of
the
preservation of the natural and developed environment concerned or
the effect of the application on existing rights concerned
when
zoning and subdivision applications are determined.
[4]
Defined
as ‘a room or set of rooms or a building utilised for the
performance of an administrative, professional, financial
or similar
function but excludes a shop’.
[5]
Defined
as ‘a site or building or portion of a site or building
utilised or intended to be utilised for gatherings, entertainment,
recreation, sports or exhibitions, and includes a billiard salon and
an amusement arcade and also includes a training centre
for more
than five persons at a time but does not include a place of worship,
an institution, a pub/tavern, place of instruction,
a private open
space or a restaurant’.
[6]
Defined
as ‘a building or portion of a building utilised or intended
to be utilised as a social or welfare institution including
the
administration thereof and includes a nursing home or clinic,
whether private or public, but does not include any hospital,
sanitarium, clinic or institution for the treatment of infectious or
contagious diseases or for the detention or treatment of
persons who
are mentally handicapped or ill’.
[7]
Defined
as ‘a building, including is the site, for an undertaking
which offers a complete range of services for motor vehicles,
including panel beating, blacksmithing, spray painting, body
building and a shop’.
[8]
Defined
as ‘the use of land as a factory within the meaning of
relevant other legislation controlling the use of land for
a factory
which may include other activities incidental and subordinate to the
main use such as offices, caretakers accommodation
and employee
restaurants, but does not include a noxious industry or activity’.
[9]
In
terms of the regulations ‘noxious use’ means ‘(a)
an offensive use or any other use which constitutes
a nuisance as
envisaged in regulations promulgated from time to time in terms of
section 33 and 34 of the Health Act, 1977 (Act
63 of 1977), read
with paragraphs (f) and (g) of the definition of “nuisance”
in section 1 of the said Act; (b) the
operation of a scheduled
process, as defined in s 1 of the Air Pollution Prevention Act, 1965
(Act 45 of 1965); and (c) the manufacture
of explosives, as defined
in section 1 of the Explosives Act, 1956 (Act 26 of 1956)’.
[10]
‘
Zone’
is defined in s 2 of the regulations as meaning an area consisting
of one or more erven for which a specific land
use or uses is
demarcated on the scheme map kept by the Council which
indicates the zoning of each erf in the scheme area.
[11]
Defined
as ‘a building used for the storage of goods, or as a depot
for a wholesale business, or as a place for the storage
of
commercial material, in so far as such a building does not fall
within the scope of a shop’.
[12]
Defined
as ‘a building in which motor vehicles, fuel and accessories
are sold and in which repairs may be effected and includes
a shop,
but excludes panel beating, spray painting, body building and
blacksmithing’.
[13]
Defined
as ‘a purpose built building in which lodging, meals and
beverages are provided, which is readily accessible to
the public
and complies with the requirements of a hotel in terms of the Hotels
Act, 1965 (Act 70 of 1965), but does not include
an off-sales
facility or bottle store’.
[14]
Define
as ‘a building which consists of a number of dwelling units or
rooms which can be let or owned separately and includes
a block of
flats, an accommodation establishment, a group house, a town house,
a retirement village and a home for aged persons,
but does not
include any hostel, institution or dwelling house’.
[15]
Defined as ‘a school, college, technical institute, academy,
lecture hall, cloister, public library, art gallery, museum,
gymnasium, crèche, or any other similar use regarded by the
Council as of an educational nature, but excludes a university,
reformatory, industrial school or a school for the mentally
handicapped’.
[16]
Defined
as a shop in which mainly prepared food and refreshments are sold
and served and which is licensed in terms of the Liquor
Act, 1977
(Act 87 of 1977), as amended from time to time.
[17]
Defined
as ‘a building or portion of a building which does not exceed
200 m
2
in nett floor area and in which any one or more of the activities
referred to in definition of “industry” is or are
conducted, but does not include a public garage, service station and
noxious use’.
[18]
Defined
as ‘a shop in which mainly alcoholic beverages are sold or are
attainable, exclusively for on-site consumption’.
[19]
The
Shorter Oxford English Dictionary vol 2 (1998); Concise Oxford
English Dictionary 12 ed (2011).
[20]
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA);
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA).