About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 291
|
|
City of Johannesburg v Cabinet Props CC and Others (41112/12) [2014] ZAGPJHC 291 (23 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
41112/12
DATE: 23
OCTOBER 2014
In the matter between:
THE CITY OF
JOHANNESBURG
...................................................................
Applicant
And
CABINET PROPS
CC
.........................................................................
First
Respondent
GIO CONSTRUCTION AND PLANT
HIRE (PTY) LTD
.................
Second
Respondent
GIO LOGISTICS (PTY)
LTD
.............................................................
Third
Respondent
J U D G M E
N T
KEIGHTLEY,
AJ:
INTRODUCTION
[1] These two cases essentially involve
the same issues and parties. It was both convenient for the
parties, and for the court,
to hear them together, and to deliver a
combined judgment. Where necessary, I will refer to the matters
as the “Cabinet
Props matter” (case number 41112/12) and
the “Abbatemarco matter” (case number 44622/12)
respectively.
[2] In the Cabinet Props matter, the
first respondent is the owner of certain immovable property, and in
the Abbatemarco matter,
the first and second respondents are the
executors in the deceased estate of the late Mr Abbatemarco, who was
the owner of a second
immovable property. It seems that
although the two properties are held under different title deeds, and
identified as separate
erfs, they form a physical unit and are
occupied and used as one property.
[3] The applicant is the City of
Johannesburg (the City). It seeks an interdict against the
first and second respondents in
each case from using, or permitting
the use of the properties in contravention of the Johannesburg Town
Planning Scheme, 1979 (the
Scheme). I will deal with the
position of the third respondent in more detail later in my
judgment. For clarity’s
sake, when I refer generally to
“the respondents” in this judgment, it must be read as a
reference only to the first
and second respondents in both cases.
I will specifically refer to the third respondent where appropriate.
[4] The City avers that the properties
are zoned “agricultural” under the Scheme. As such,
the permitted use of
the properties is restricted to that of
“agricultural purposes” and “dwelling houses”.
It avers further
that the properties are being used for purposes of a
brick and paving manufacturing plant and as offices for the business
related
to this manufacturing enterprise. This use, the City
avers, is not permitted under the Scheme.
[5] The City submits that in terms of
section 58 of the Townships and Town Planning Ordinance, it is
obliged to enforce the provisions
of the Scheme. It is applying
for interdicts against the aforementioned respondents in compliance
with this obligation.
The City points out further that any
person who contravenes the Scheme, or who uses property for purposes
not permitted by the
Scheme, is guilty of a criminal offence.
[6] None of the respondents dispute that
the properties are being used for the purposes averred by the City.
However, there
is a dispute as to whether the properties are indeed
zoned as agricultural under the Scheme. The respondents assert
that
they are zoned “Business and Commercial”. For
reasons that will become apparent shortly, I will deal with this
dispute at a later stage.
[7] Prior to hearing the merits of the
City’s application, and without notice, I was faced with an
application from the Bar
by counsel representing the first and second
respondents in both matters. He contended that the matter was
not ripe for hearing
as the joinder of the third respondent in both
matters, Gio Logistics (Pty) Ltd, “was incomplete”.
In order to
avoid any unnecessary delay, I decided to deal with this
as a point
in limine
, rather than as a separate application
(if indeed it can even be classified as such), and to hear argument
from both sides on this
point, as well as on the merits of the City’s
application, at the same time.
[8] Accordingly, the first issue I must
deal with in my judgment is that of whether the City’s
application is ripe for hearing
on the basis that the joinder of the
third respondent is “incomplete”. Of course, if I
decide that it is not
ripe for hearing, I will not proceed to deal
with and decide the merits of the matter now, albeit that I heard
argument on them.
IS THE MATTER RIPE FOR HEARING?
[9] By way of background to this issue,
I should explain that the City sought to join the third respondent in
both matters after
the initial respondents took a non-joinder point
in their respective answering affidavits. These respondents
averred that
the properties had been let to Geo Logistics (Pty) Ltd,
which company was responsible for conducting the relevant activities
on
the properties. They contended that the non-joinder of Geo
Logistics (Pty) Ltd was fatal to the application.
[10] Subsequent thereto the City brought
an application to join Geo Logistics as the third respondent in each
of the matters.
The City made it clear in its application for
joinder that it disputed that Geo Logistics had a direct and
substantial interest
in the City’s application, and that it was
seeking joinder as a precautionary measure. There was no
opposition to the
joinder, and it was granted on 14 May 2014 in both
matters.
[11] The order directing the joinder did
not include an order directing the City to serve a copy of the papers
on the third respondent.
It is common cause that the City never
did so. However, it is apparent from the papers that the City
served, by way of messenger,
a copy of the Notices of Setdown, and
the City’s heads of argument on the third respondent in June
and in August 2014.
[12] It is further common cause that the
third respondent is represented by the same attorney that represents
the other respondents,
and that it has never requested a copy of the
papers from the City. One would assume that it would be a
simple matter for
the third respondent to obtain a copy of the papers
from its own attorney.
[13] I was also advised by counsel for
the City, Mr Pullinger, at the hearing of the matter that the third
respondent had served
a notice of intention to oppose on the City in
the Cabinet Props matter, although this Notice is not included in the
court’s
file. A copy of the notice was handed to me.
It seems to have been served in August 2014, but there is no
answering
affidavit in the court file following this notice of
intention to oppose. I was also provided with copies of an
email exchanged
between the attorneys for both sides, which had been
forwarded to both Mr Pullinger, for the City, and Mr Dobie, counsel
for the
respondents. In this email, dated 26 August 2014, the
attorney for the respondents (including third respondent) confirms
that he had served notices to oppose on behalf of the third
respondent in both matters, but that the third respondent hadn’t
yet been served with the application. From the remainder of the
email it is clear that the respondent’s attorney was
aware that
the application had been set down for 13 October 2014.
[14] Mr Dobie’s submission is that
until the application papers have been filed on the third respondent,
the joinder of that
respondent is not complete. Accordingly, he
submits, the application is not ripe for hearing and it should be
postponed to
permit the application to be served and third respondent
to participate as an active party in the proceedings, should it elect
to do so.
[15] Mr Pullinger submits that the third
respondent was only joined as a cautionary measure: it does not have
a direct and substantial
interest in the matter, and the matter can
proceed without it. Mr Pullinger submits further that the Rules
do not require
an applicant for joinder to serve copies of the papers
on the joined party, and the order of joinder contained no such
direction.
He also points to the fact that the third respondent
is represented by the same attorney as the other respondents.
Thus,
it had a copy of the papers at its disposal. In addition,
the third respondent was clearly aware that the matter was scheduled
to be heard on 13 October 2014, and the inference that can be drawn
from this is that it elected, at its own risk, not to appear
in the
hope that the technical non-joinder point raised by Mr Dobie on
behalf of the remaining respondents would result in a postponement
of
the matter.
[16] In my view, this issue is quite
easily resolved without my having to make a determination on whether
the third respondent has
a direct and substantial interest in the
matter, and whether the City was obliged to serve the application
papers on the third
respondent before it could move the application
before me.
[17] I am not quite sure what is meant
by Mr Dobie’s submission that the non-service of the papers
renders the joinder “incomplete”.
I can understand
the merit in the argument that a court should not grant relief
against a party in its absence in circumstances
where they have been
joined in the matter, and have not indicated that they will abide by
the order of the court. This is
a simple application of the
audi alteram partem
principle, i.e. an order should not be
made against a party until that party has been given a proper
opportunity to be heard.
[18] However, in the present matter, the
City does not seek relief against the third respondent. Mr
Pullinger made this quite
clear at the hearing of the matter.
It seeks only to interdict the first and second respondents in both
matters from using,
or permitting the properties to be used for
purposes not permitted under the Scheme. Should it become
necessary or advisable
for the City to seek relief directly against
the third respondent, it may do so by way of an additional
application for an interdict
against it.
[19] In my view, the third respondent
has had ample notice of the application and its set down. It
has had ample notice of
the issues at hand by virtue of the City
delivering the heads of argument on it. In addition, its
attorneys have copies of
all the papers in the application. The
third respondent did not appear itself at the hearing to argue the
technical point
raised by Mr Dobie. It appears to have elected
not to put in an appearance, and accordingly it assumed the risk that
the
matter would not be postponed and that an interdict would be
granted in its absence. In addition, as I have pointed out, the City
does not seek an interdict against the third respondent.
[20] In these circumstances, the
principle of
audi alteram partem
will not be violated by
proceeding on the merits of the application without an appearance on
the part of the third respondent.
To hold differently would, in
my view, be putting form above substance, and would permit a clearly
technical argument to prevail
in circumstances where the interests of
justice do not require this.
[21] Are there any other considerations
that might render the application not ripe for hearing on the basis
of the non-service of
the papers on the third respondent? To my
mind, the only other basis on which the argument may succeed is that
the non-joinder
of the third respondent renders the application
fatal. Of course, for this argument to succeed, I would have to
find that
joinder is only “complete” when the papers are
served on the third respondent.
[22] In my view, I do not need to get to
that point. For a non-joinder to be fatal in a case like this,
the participation
in the litigation of the party whose joinder is in
issue must be necessary for the relief that is sought to be
effective.
It is common cause in this matter that the lease
agreements between the other respondents and the third respondent
contains a clause
to the effect that:
“The Lessee shall (n)ot contravene
or permit the contravention of any law, by-law or statutory
regulation or the provisions
of any license or consent relating to or
affecting the premises, the occupation thereof or the conduct of he
Lessee’s business
therein.”
[23] The lease agreements also contain a
breach clause which provides that the Lessee will be in breach of the
agreement if it “consistently
breach(es) any one or more of the
terms of this Lease in such manner as to justify the Lessor in
holding that the Lessee’s
conduct is inconsistent with the
Lessee’s intention or ability to carry out the terms of the
Lease”.
[24] It is clear from these terms that
the continued use of the property contrary to the Scheme will
constitute a breach of the
lease agreement permitting the Lessor (in
this case the first respondent in the Cabinet Props matter, and the
first and second
respondents in the Abbatemarco matter) to cancel the
lease.
[25] For this reason, the participation
of the third respondent in the City’s application is not
necessary for the relief
the City seeks to be effective. If an
interdict is granted against the other respondents, they will be
obliged, on pain of
committing a criminal offence, to cancel the
leases with the third respondent and so to give effect to the
interdicts.
[26] For these reasons, I find that
there is no merit in the respondents’ contentions that the
non-service of the application
papers on the third respondent renders
the joinder “incomplete”, and that the matter is not ripe
for hearing.
I find that the City is entitled to proceed with
its application.
THE MERITS OF THE APPLICATION
[27] The only issue in dispute between
the parties in the City’s application is whether the properties
are in fact zoned agricultural.
The respondents submit that
they are not. They rely for their contention on a Tax Invoice
issued by the City in September
2013 in respect of the properties.
On the reverse side of the Tax Invoice, under “Property Rates”,
appears the
following citation “Category of Property: BUSINESS
& COMMERCIAL”. The respondents assert that this
places
material doubt on whether the City is correct in its assertion
that the properties are zoned agricultural.
[28] Quite how a Tax Invoice can ever be
regarded as proof of the correct zoning of a property escapes me.
There can be any
number of reasons for a description like the one
relied on by the Respondents to be included in a Tax Certificate.
The description
could be included in error, or it could be a
description of the property rate applicable, rather than the zoning
of the property
under the Scheme. The evidence before me
indicates that where properties are being used for purposes other
than their permitted
purpose, like those in the present case, they
are rated on the nature of their use, rather than the nature of their
zoning.
In my view, this is a perfectly reasonable explanation
for the particular description at issue before me.
[29] Be that as it may, I do not need to
exercise myself further on this issue. On being challenged by
the respondents as
to the correctness of the zoning of the
properties, the City attached to its replying affidavit a Zoning
Information sheet completed
by one Lerato Mahonga, who is employed by
the City in its Geo-Informatics Department. Ms Mahonga confirms
by way of affidavit
that the information on the Zoning sheet is
correct. It is to the effect that according to the Scheme the
properties are
zoned “Agricultural and Undetermined”.
[30] This puts to bed any dispute there
may be as regards the zoning of the properties. While it is
correct, as Mr Dobie pointed
out, that the proof of zoning was only
provided by the City in reply, this did not, in my view, amount to
the City making out its
case in its replying affidavit. The
City made the necessary averment in its founding papers that the
property was zoned agricultural.
It provided proof to this
effect when it became necessary to do so because the respondents
disputed the zoning in their answering
affidavit. There was
nothing untoward in this.
[31] In the circumstances, it seems to
me that the City is entitled to its relief. To refuse to grant
an interdict in this
case would be to permit the commission of a
criminal offence. I would be acting contrary to the principal
of legality were
I to do this. As the Supreme Court of Appeal
recently held:
“Courts have a duty to ensure that
the doctrine of legality is upheld and to grant recourse at the
instance of public bodies
charged with the duty of upholding the
law.”
[1]
[32] As regards the question of whether
a court has a discretion to refuse to grant an interdict in cases
like the present, the
SCA quoted with approval
[2]
the following dictum of Harms J in
United Technical Equipment
Company (Pty) Ltd v Johannesburg City Council
:
[3]
“It follows from an analysis of
these cases that discretion can, if at all, only arise under
exceptional circumstances.
[33] No exceptional circumstances arise
in this case.
[34] Two final issues remain to be dealt
with briefly. Firstly, while the respondents initially sought
relief in the form
of a counter-application for an order staying the
interdict application pending the outcome of a consent-use
application, rezoning
application or realignment application on its
part, they did not persist in seeking this relief when the matter was
heard.
[35] The second issue is that of costs.
Mr Pullinger for the City sought an order for costs on a punitive
scale. In
my view, this is not a case where an order to this
effect would be appropriate. The respondents were entitled to
oppose the
relief sought even if the effect of so doing was to extend
the illegal use of the property. This is part and parcel of
litigation.
While the City is entitled to its costs, it is not
entitled to a punitive costs order.
ORDER
[36] In the circumstances, I make the
following orders:
[37]
Under Case no: 41112/2012
1. The first and second respondents are
hereby interdicted and restrained from using or causing or permitting
the use of certain
immovable property, being PORTION 50 REMAINING
EXTENT FARM 327 OLIFANTSVLEI TOWNSHIP, REGISTRATION DIVISION I.Q.,
GAUTENG, situate
at 50 MAIN SERVICE ROAD, OLIFANTSVLEI (“the
property”) for any purpose other than for agricultural
purposes, and dwelling
houses, as permitted and prescribed by the
zoning “Agricultural” in terms of the Johannesburg Town
Planning Scheme
1979 for so long as the property is so zoned;
2. In particular and without limiting
the generality of the order in paragraph 1 above, the first and
second respondents are interdicted
and restrained from using or
permitting the property to be used for purposes of a brick
manufacturing business, and for business
purposes;
3. Within 4 (FOUR) weeks from the date
of this order, the first and second respondents are to remove from
the property, or cause
to be removed from the property items of
whatsoever nature which have the effect of constituting the use of
the property for the
purposes described above, or any other use which
contravenes the same scheme;
4. The first and second respondents’
counter application is dismissed;
5. The first and second respondents are
ordered to pay the costs of and in connection with this application,
and the counter application,
on a party and party scale.
[38]
Under Case no: 44622/2012
1. The first and second respondents are
hereby interdicted and restrained from using or causing or permitting
the use of certain
immovable property, being PORTION 88 OF FARM 327
OLIFANTSVLEI TOWNSHIP, REGISTRATION DIVISION I.Q., GAUTENG, situate
at 88 MAIN
SERVICE ROAD, OLIFANTSVLEI (“the property”)
for any purpose other than for agricultural purposes, and dwelling
houses,
as permitted and prescribed by the zoning “Agricultural”
in terms of the Johannesburg Town Planning Scheme 1979
for so
long as the property is so zoned;
2. In particular and without limiting
the generality of the order in paragraph 1 above, the first and
second respondents are interdicted
and restrained from using or
permitting the property to be used for purposes of a brick
manufacturing business, and for business
purposes;
3. Within 4 (FOUR) weeks from the date
of this order, the first and second respondents are to remove from
the property, or cause
to be removed from the property items of
whatsoever nature which have the effect of constituting the use of
the property for the
purposes described above, or any other use which
contravenes the same scheme;
4. The first and second respondents’
counter application is dismissed;
5. The first and second respondents are
ordered to pay the costs of and in connection with this application,
and the counter application,
on a party and party scale.
R KEIGHTLEY
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date Heard: 13 October 2014
Date of Judgment: October 2014
Counsel for the Applicants: Adv. A W
Pullinger
Instructed by: Moodie & Robertson
Counsel for the Respondent: Adv.
Dobie
Instructed by: Michael Mclouchlin &
Co Athe Attorney
[1]
Lester v Ndlambe Municipality
[2013] ZASCA 95
at para 24
[2]
At para 23
[3]
1987 (4) SA 343
(T) at 347F-H