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[2016] ZAGPJHC 374
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Makgosi Properties (Pty) Limited v Fichard NO and Others (24249/2015) [2016] ZAGPJHC 374 (13 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE
Case
No: 24249/2015
MAKGOSI
PROPERTIES (PTY) LIMITED v EDWIN HAROLD FICHARD N.O. and others
Case
Summary: Township – Town planning scheme - Sandton Town
Planning Scheme, 1980 – Property zoned as residential
1 being
used for business purposes.
Locus
standi
of
applicant as owner of adjacent property and requisites for grant of
final interdict restraining property owner and occupier from
using
property as offices established - prohibition in scheme was
enacted inter alia in the interests of person owning neighbouring
property which would like to see certain amenities provided by the
scheme maintained - it has public right to enforce compliance
with the zoning provisions – its right has been invaded –
only effective remedy for asserting and protecting
right is an
interdict, all the more so because the infringement thereof amounts
to an offence.
Acquiescence
– raised as defence against the grant of final interdict –
not established that applicant for final interdict
abandoned,
renounced or surrendered the right it sought to enforce and tacitly
consented to the continued infringement thereof.
General
discretion of court to refuse or suspend final interdict when all the
requisites for the grant of a final interdict have
been met - now
settled law that a court has discretionary jurisdiction, in
exceptional circumstances, to suspend operation of final
interdict,
but not where the wrong complained of amounts to a crime, except
where the maxim
de minimis non curat lex
finds application -
contravention of the zoning provisions must be overlooked on
the basis of
de minimis
- present use for office purposes
pursuant to an approved application for rezoning which would give
owner the right to use the property
for office purposes - all that
remains for coming into operation of the approved rezoning
application is formality of publication
of notice of the approval in
the Provincial Gazette.
Final
interdict granted, but its operation suspended.
JUDGMENT
MEYER,
J
[1]
This is an application in which the applicant, Makgosi Properties
(Pty) Limited (Makgosi), seeks an interdict restraining the
first,
second and third respondents, Mr EH Fichard N.O., Ms DA Fichard N.O.
and Ms N Kellet N.O. (the trustees), in their official
capacities as
the trustees of the Fichard Family Trust (the trust), and the fourth
respondent, Efficiency Advertising and Marketing
(Pty) Limited (EAM),
from using or allowing the use of the trust property, being Portion 2
of Erf 819, Bryanston Township, Registration
Division IR, Province of
Gauteng and situated at 3 Portman Road, Bryanston, Johannesburg, for
any purpose (and particularly not
for business purposes) other than
for dwelling houses as permitted and prescribed by its zoning as
residential 1 in terms of the
Sandton Town Planning Scheme 1980, for
so long as the property is so zoned.
[2]
EAM is in occupation of the trust property, which it uses as offices
in conducting a design, advertising and marketing business,
with 42
employees working there. Makgosi is the owner of an adjacent
property, being Erf 820, Bryanston Township, which is
being used for
residential purposes. The application is opposed by the
trustees and by EAM. The fifth respondent is
the City of
Johannesburg and the 6
th
– 23
rd
respondents are property owners in close proximity to the trust
property. They are not opposing the application.
[3]
The trust property is subject to the Sandton Town Planning Scheme,
1980 (the scheme). It is zoned residential 1 in terms
of the
zoning provisions of the scheme, and accordingly the only purpose for
which it and the buildings thereon may be used is
for dwelling units,
as defined in the scheme. Any other use is consequently
prohibited. The use of the trust property
as offices for
business purposes in contravention of the scheme also constitutes an
offence in terms of clause 33 of the scheme
and s 58(2) of the Town
Planning and Townships Ordinance 15 of 1986 (the Ordinance).
[4]
On 4 June 2014, the trust gave notice in terms of s 5(5) of the
Gauteng Removal of Restrictions Act 3 of 1996 (the GRR Act)
in the
Provincial Gazette (No. 125) of its application to the City of
Johannesburg for the removal of certain conditions in the
title deed
in respect of the trust property and for the amendment of the scheme
by the rezoning of the trust property from residential
1 to business
4, which would give the trust as owner the right to use the trust
property for office purposes (the rezoning application).
Should
the rezoning application be successful the use by the trust and by
EAM of the trust property for business purposes would
be lawful.
Makgosi and the 6
th
to 23
rd
respondents
objected to the rezoning application.
[5]
An ‘authorized local authority’, such as the City of
Johannesburg, is enjoined to hold a hearing in respect of such
application and the applicant, objectors and any person who made
representations in respect thereof are heard at such hearing before
the local authority considers and takes a decision to refuse or to
grant the application on such conditions as it may deem fit.
Notice of its decision must inter alia be given in the Provincial
Gazette (s 6 of the GRR Act). An approved application comes
into operation on the date stated in the notice, which date, in the
case where objections were lodged or representations made or
the
application was approved subject to an amendment, must be not less
than 28 days from the date of the publication of the notice.
Otherwise it comes into operation on the date of the publication of
the notice, except where an appeal is lodged (s 9).
[6]
Section 7 of the GRR Act provides for an internal appeal by the
applicant and any person who objected to the application and
who is
aggrieved by any decision of the local authority to the Townships
Board, which body is to hear and consider the appeal and
prepare a
report for submission to the MEC (the member of the Executive Council
of the Province designated by the Premier of the
Gauteng Government)
in which it, inter alia, recommends that the appeal be upheld or
dismissed subject to any condition which it
considers necessary.
The MEC then considers the appeal, and dismisses or upholds it
subject to any condition which he or
she deems necessary.
Notice of the MEC’s decision is to be given without delay in
inter alia the Provincial Gazette.
The date of publication of
this notice seems to be the date on which an approved application
that unsuccessfully went on appeal
comes into operation.
[7]
Makgosi launched the present motion proceedings on 3 July 2015.
It was heard by me on 24 February 2016 and judgment was
reserved.
In the interim, on 10 June 2016, the trustees and EAM filed a
supplementary affidavit. Makgosi objected to
the filing
thereof. I accordingly heard further argument on 24 June 2016,
inter alia on whether the filing of the supplementary
affidavit
should be permitted. I was informed by Makgosi that it did not
wish to reply should the filing thereof be permitted.
The
supplementary affidavit deals with occurrences post the filing of the
answering affidavit and the hearing of the matter on
24 February
2016. I consider the further evidence of such a degree of
materiality in this case that its filing should be
allowed.
(See
Porterstraat 69 Eiendomme (Pty) ltd v P A Venter Worcester
(Pty) Ltd
2000 (4) SA 598
(CPD) at 617H-I.)
[8]
It is stated therein that the Municipal Planning Tribunal of the City
of Johannesburg (the tribunal) notified all the parties
to the
rezoning application that a hearing in respect thereof was convened
for 31 May 2016, and that the hearing would be preceded
by a site
inspection of the trust property. The 6
th
to 23
rd
respondents withdrew their opposition to the rezoning application
prior to that notification, and Makgosi remained the only objector.
In opposing the rezoning application, Makgosi was represented by an
attorney, Mr Roger Burman, who is a director of Makgosi’s
attorneys of record in these motion proceedings, Bowman Gilfillan
Inc.
[9]
Prior to the commencement of the site inspection, Mr Burman informed
the tribunal that, although Makgosi was not prepared to
formally
withdraw its objection, it had no objection to the rezoning
application being approved subject to the conditions proposed
by the
Development Planning Department of the City of Johannesburg.
The need for the site inspection thus fell away and the
parties were
excused from attendance. The tribunal approved the
rezoning application subject to the conditions proposed
by the
Development Planning Department of the City of Johannesburg.
The approved rezoning application will accordingly, in
terms of s 9
of the GRR Act, come into operation on the date stated in the notice
which is to be published by the City of Johannesburg
in the
Provincial Gazette. The trustees say that they have no control
over the date of publication of the notice.
[10]
The necessary requisites for the grant of a final interdict are
trite. The leading case on the subject is
Setlogelo v
Setlogelo
1914 AD 221
and the requisites therein stated have
often been restated. They are (a) a clear right on the part of
the applicant (b) an
injury actually committed or reasonably
apprehended and (c) the absence of any other satisfactory remedy
available to the applicant.
[11]
Makgosi’s
locus standi
must be tested against the
principle stated by Solomon J in
Patz v Greene
1907 TS 427
, at
433, namely:
‘
Everyone has the right . . . to
protect himself by appeal to a Court of law against loss caused to
him by the doing of an act by
another, which is expressly prohibited
by law. Where the act is expressly prohibited in the interests
of a particular person,
the Court will presume that he is damnified,
but where the prohibition is in the public interest, then any member
of the public
who can prove that he has sustained damage is entitled
to his remedy.’
As
was pointed out by Margo J in
C.D. of Birnam (Suburban) (Pty) Ltd
and others v Falcon Investments Ltd
1973 (3) SA 838
(WLD), at
844F-G, the first part of the above quoted statement of the law was
amplified in
Roodepoort-Maraisburg Town Council v Eastern
Properties (Pty) Ltd
1933 AD 87
, at 96, and it was held that-
‘
[i]t is not necessary that the
act should be expressly prohibited in the interests of the particular
person who claims the interdict.
It is enough if the
prohibition is in the interests of a class of persons of which he is
a member, and if the prohibition is impliedly
in the interests of
such class.’
(Also
see
BEF (Pty) Ltd v Cape Town Municipality and others
1983 (2)
SA 387
(CPD), at 400D-H.)
[12]
It is common cause that the trust and EAM are contravening the
rezoning provisions of the scheme. Makgosi, therefore,
must
show either that such prohibition was enacted in the interests of
property owners in its position, or that it has suffered
loss or
damage by reason of the breach. In my view it succeeded in
establishing
locus standi
on the first ground defined in
Patz
v Greene
.
[13]
Section 19 of the Ordinance provides that-
‘
. . . the general purpose of a
town-planning scheme shall be the co-ordinated and harmonious
development of the area to which it
relates in such a way as will
most effectively tend to promote the health, safety, good order,
amenity, convenience and general
welfare of such area as well as
efficiency and economy in the process of such development.’
[14]
The purpose of zoning and its concomitant restriction on the use
rights attaching to land is to provide for the orderly, harmonious
and effective development of the affected area. (See
Chapmans
Peak Hotel (Pty) Ltd and another v Jab and Annalene Restaurants CC
t/a O’Hagans
[2001] 4 All
SA
415
(C), para 12.)
A town-planning scheme is conceived in the general interests of the
community to which it applies. It
is intended to operate, not
in the general public interest, but in the interest of the
inhabitants of the area covered by the scheme
and who would be
affected by the particular provision in the scheme. (See
The
Administrator, Transvaal and Firs Investments (Pty) Ltd v
Johannesburg City Council
1971 (1) SA 56
(A), at 70D;
BEF
(Pty) Ltd v Cape Town Municipality and others
1983 (2) SA 387
(CPD), at 400H-401C;
Chapmans Peak Hotel
, para 12.)
[15]
As was held by Grosskopf J in
BEF
, at 401B-C, to be ‘affected’
by a particular provision as an inhabitant of the area covered by the
scheme, the inhabitant
need not be-
‘
. . . damnified in a financial
sense. “Health, safety, order, amenity, convenience and
general welfare” are not
usually measurable in financial
terms. Buildings which do not comply with the scheme may have
no financial effect on neighbouring
properties, or may even enhance
their value, but may nevertheless detract from the amenity of the
neighbourhood and, if allowed
to proliferate, may change the whole
character of the area. This is . . . the type of value which
the ordinance and schemes
created thereunder, are designed to promote
and protect.’
[16]
Protection of those interests or values falls within the ambit of
municipal function. (See
Firs Investments
, at 70D, and
Chapmans Peak Hotel
, para 12.) Also, ‘a person is
entitled to take up the attitude that he lives in a particular area
in which the scheme
provides certain amenities which he would like to
see maintained’ and ‘he may take appropriate legal steps
to ensure
that nobody diminishes these amenities unlawfully.’
(Per Grosskopf, J in
BEF
, at 401E. Also see:
Chapman’s Peak Hotel
, para 13, and
Pick ‘n Pay
Stores Ltd and others v Teazers Comedy and Revue CC and others
2000
(3) SA 645
(WLD), at 653H-654D.) The nature of such a
person’s right that is being infringed, so it was held by
Griesel
J in
Chapman’s Peak Hotel
, para 12, is his ‘.
. . public law right to enforce compliance with the relevant zoning
scheme.’
[17]
Makgosi and the trust are owners of adjoining properties in the same
use zone area. Makgosi’s property is used
for residential
purposes. Its objection to the unlawful use of the trust property as
offices is against the impact that the use
of the trust property for
business purposes has on the amenities of the area. In its
founding affidavit it states that it
‘. . . has an interest in
the amenities of the neighbourhood and a clear right to the
protection thereof.’ Makgosi
is an immediate neighbour to
the trust property on which the non-conforming business is
conducted. In setting apart areas
for residential purposes
under the scheme, the legislature intended to confer on the owners of
land in those areas the right to
enforce the scheme.
[18]
The breach by the trust and EAM of the zoning provisions of the
scheme also constitutes ‘injury’ for purposes of
the
second essential requirement for final interdict relief, which was
expressed in the classic formulation as ‘injury actually
committed or reasonably apprehended’. (See
Setlogelo
,
at 227.) The cause of Makgosi’s complaint is that the
trust and EAM are using or causing the trust property to be
used in
violation of the zoning provisions of the scheme. To prove the
necessary injury or harm it is enough for it to show,
which it
succeeded in establishing, that its right has been invaded.
(See
V&A Waterfront Properties (Pty) Ltd and another v
Helicopter & Marine Services (Pty) Ltd and others
2006 (1) SA
252
(SCA), paras 20-21.)
[19]
I am, therefore, satisfied that Makgosi has established its
locus
standi
and the first two requisites for the grant of the final
interdict it seeks. Coming to the third and final requirement,
the
trust and EAM argued that an interdict was not the only
appropriate remedy. They found authority for their
contention
- that in order to establish the final requirement Makgosi
was required, but failed to show that a criminal prosecution would
not
be an adequate remedy - in the judgment of the Supreme Court of
Appeal in
Food and Allied Workers’ Union and others v
Scandia Delicatessen CC and another
2001 (3) SA 613
(SCA), paras
35-36 and 39, wherein it was held that ‘in certain cases a
criminal prosecution may well be an adequate remedy
such as to
disentitle a person to whom such remedy is available from obtaining
an interdict’ and that where a criminal prosecution
would
constitute an adequate alternative remedy, a final interdict should
not be granted in circumstances where the applicant failed
to place
any evidence before the court as to why the institution of a
prosecution would be an inadequate remedy.
[20]
The
Scandia Delicatessen
appeal is distinguishable from the
present application. That appeal arose from an application that
was dismissed by Page
J in the Durban and Coast Local Division of the
High Court (reported as
Food and Allied Workers’ Union and
others v Scandia Delicatessen CC and another
1999 (3) SA 731
(D))
in which he held that the high court does not have the power to make
a committal order for contempt based upon non-compliance
with a
judgment of the industrial court ordering the reinstatement of the
applicants in that case and that it is impermissible
to attempt,
indirectly, to confer that power on the high court by seeking to
convert the industrial court’s order into an
order of the high
court. In the alternative it was held that, despite the fact
that no power to commit for contempt based
on non-complianc e with an
order
ad factum praestandum
was given to the industrial court,
the legislature had made adequate provision for the execution of
industrial court judgments by
that court by virtue of the provisions
of subsections 53(1) and 82(1) of the previous Labour Relations Act
28 of 1956 that were
applicable to the dispute between the parties.
Such provisions made non-compliance with any order made by the
industrial
court a criminal offence punishable with a fine not
exceeding R2 000 or imprisonment for a period not exceeding two years
or such
imprisonment without the option of a fine or both such fine
and such imprisonment. (See the SCA judgment, paras 2-12.)
[21]
The Supreme Court of Appeal (per Farlam JA) held that, in essence,
what was being sought was a final mandatory interdict and
that the
question required to be considered was whether the appellants had
established the requisite that there was no other satisfactory
remedy
available, and particularly whether a criminal prosecution under s
53(1) was competent in the circumstances, and, if so,
whether it was
shown that such a prosecution would not be an adequate remedy (paras
22-27). Farlam JA concluded that a criminal
prosecution under s
53(1) was competent (para 33) and that it had not been shown that
such a prosecution would be an inadequate
remedy for the appellants
in that case (paras 34-40). Those findings were clearly fact
specific and based on the circumstances
of the appeal before the
Supreme Court of Appeal. Farlam JA concluded the judgment in
saying:
‘
It follows from what I have
said that the unmotivated statement in
Minister
of Health v Drums and Pails Reconditioning CC t/a Village Drums &
Pails
1997 (3) SA 867
(N)
at 877E-G, that the fact that an Act provides by way of criminal
sanction for an alleged contravention of its provisions is
no bar to
the granting of an interdict, is not correct for
all
cases.’
(Emphasis
added.)
[22]
The
Scandia Delicatessen
case and the present case are not
comparable at all. There is a glut of authority (I have
referred to some of them (
Firs Investments
,
BEF
,
Pick
n Pay
and
Chapmans Peak Hotel
)) that inhabitants,
particularly immediate neighbours to the affected property, can
enforce, by interdict, compliance with a zoning
scheme. These cases
require a swift remedy to be applied against a party contravening a
zoning scheme. As was stated by Griesel
J in
Chapmans Peak
Hotel
, para 18:
‘
Once it is accepted that the
nature of the right in question is a public right, then it must
follow, in my view, that for continuing
infringements of that right
the only effective remedy is an interdict [See eg
Johannesburg
City Council v Knoetze & Sons
1969
(2) SA 148
(W) at 154A-155B and authorities referred to therein.],
all the more so where such infringements amount to an offence [
Patz
v Greene & Co
1907 TS
427.].
’
[23]
I am, therefore, also satisfied that Makgosi established the third
and final requisite for the grant of the final interdictory
relief it
seeks. It has a clear right to approach this court in order to
prevent the continuous contravention of the zoning
provisions of the
scheme by the trustees and EAM. Its only effective remedy for
asserting and protecting its right is an
interdict, all the more so
because the infringement thereof amounts to an offence. (See
Chapmans
Peak Hotel
(supra),
para 18.)
[24]
The trust and EAM raised acquiescence as a further defence in
argument before me on 24 June 2016. The final interdict
should
not be granted, they argued, because on 31 May 2016 Makgosi
acquiesced in the rezoning of the trust property from residential
1
to business 4, which rezoning permits an office development on the
trust property. They argued that in these circumstances,
Makgosi is now precluded by its acquiescence in their conduct from
obtaining the interdictory relief it seeks. They relied
on the
decision in
Botha v White
2004 (3) SA 184
(T), for their
contention that an applicant, such as Makgosi, may be estopped by
acquiescence from seeking an interdict to stop
a continuous
contravention of the zoning provisions of a scheme. The
applicant in that case sought to interdict the respondent
from
continuing to conduct businesses from her property on the basis that
the property was zoned agricultural and not business.
The
respondent took over existing businesses that were conducted on the
property when she bought the property. She subsequently
applied
for, and was granted, without objection from the applicant, the
necessary licences authorising her to conduct the businesses
and she
applied for a rezoning of the property, which application was
pending. Patel J found that the applicant was estopped
by
acquiescence from seeking an interdict as he had for a period of over
three years not complained about her conducting the businesses
from
the property and he had, in fact, been one of her customers (paras
24-34).
[25]
In
Policansky Bros v Hermann & Canard
1910 TPD 1265
, at
1278-9, Wessels J said the following:
‘
It is a principle of our law
that if a person has once acquired a right he is entitled at any time
to vindicate that right when
infringed, provided the period of
prescription has not elapsed. This is the general rule, but in
course of time exceptions
have been grafted on to this rule.
The equitable principle that if a person lies by with full knowledge
of his rights and
of the infringement of those rights, he is
precluded from afterwards asserting them, has been adopted by our
courts. It forms
a branch of the law of
dolus
malus
. The principle
of lying by is not unknown to the civil law, though its application
is not so often met with in our system
of law as it is in English
law. Sometimes the rights are lost through mere acquiescence,
at other times by estoppel, as where
the element of prejudice exists
in addition to acquiescence. Thus acquiescence can be proved by
definite acts or by conduct.’
[26]
In
Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point)
(Pty) Ltd
1974 (2) SA 125
(C), at 137D-F, Friedman AJ said the
following:
‘
Acquiescence is, in my view, a
form of tacit consent, and in this regard it must, however, be borne
in mind that, as Watermeyer
CJ said in
Collen
v Rietfontein Engineering Works
1984
(1) SA 413
(A) at 422:
“
Quiescence
is not necessarily acquiescence,” and that “conduct to
constitute an acceptance must be an unequivocal indication
to the
other party of such acceptance”.’
(Also see:
Safari
Surf Shop v CC v Heavywater and others
[1996] 4 All SA 316
(D) at
323i-j;
New Media Publishing (Pty) Ltd v Eating Out Web
Services CC
[2005] ZAWCHC 20
;
2005 (5) SA 388
(C), at 407E-I;
Harvey
v Umhlatuze Municipality and others
2011 (1) SA 601
(KZP), paras
180-182.)
[27]
Whether a party can be said to have acquiesced in the conduct
complained of is a question of fact. (
Burnkloof
, at
137B.) The acts or conduct relied upon to prove acquiescence
must be unequivocal and inconsistent with any intention
to enforce a
party’s infringed right. As was said by Innes CJ in
Dabner v South African Railways and Harbours
1920 AD 583
, at
594, ‘[i]n doubtful cases acquiescence, like waiver, must be
held to be non-proven.’ (See
Qoboshiyane NO and others
v Avusa Publishing Eastern Cape (Pty) Ltd and others
2013 (3) SA
315
(SCA), para 3.)
[28]
I am unable to find, on the evidence presented in the supplementary
affidavit, that Mr Burman’s statement to the tribunal
- that
although Makgosi was not prepared to formally withdraw its objection,
it had no objection if the rezoning application is
approved subject
to the conditions as proposed by the Development Planning Department
of the City of Johannesburg - amounted to
a tacit consent on the part
of Makgosi to allow the trust and EAM to indefinitely continue with
their unlawful use of the trust
property until such time as the
rezoning is approved and comes into effect. In other words, I
am unable to find that Makgosi’s
conduct was unequivocal and
inconsistent with an intention to enforce its public law right to
compliance with the zoning provisions
of the scheme. It does
not necessarily follow from the fact that Makgosi did not have an
objection to the rezoning application
being approved subject to the
conditions proposed that it has abandoned, renounced or surrendered
the right that it sought to enforce
in these proceedings or that it
henceforth consented to the continued infringement of that right.
Makgosi has brought the
present application for interdictory relief
despite the application for rezoning being pending. The
enforcement proceedings
in this court were for all practical purposes
finalised and all that remained was for judgment to be delivered at
the time when
Makgosi elected not to oppose the rezoning application
on the conditions proposed. This is, at best for the trust and
EAM,
a doubtful case of acquiescence and it, therefore, must be held
to be non-proven. The facts in
Botha v White
and those
in this case are clearly distinguishable. The defence of
acquiescence must fail.
[29]
Being satisfied that all the requisites for the grant of a final
interdict have been met, it remains to be considered whether
the
interdict should nevertheless be refused or suspended. In
Lester v Ndlambe Municipality and another
[2014] 1 All SA 402
(SCA), para 23, the Supreme Court of Appeal endorsed the decision of
the full court in
United Technical Equipment Co (Pty) Ltd v
Johannesburg City Council
1987 (4) SA 343
(T) on the question
whether a court has a general discretion to refuse or suspend an
interdict when all the requisites for the
grant of a final interdict
have been met. Majiedt JA, writing the unanimous judgment, said
the following:
‘
. . . In
United
Technical Equipment Co (Pty) Ltd v Johannesburg City Council
the Full Court was seized with an appeal against the granting of an
interdict in the Local Division in terms whereof the appellant
company (
qua
respondent
a quo
)
was restrained from using property which was zoned residential in
terms of the Town Planning Scheme, for business purposes (offices).
It was common cause that by using the property as offices, the
appellant was committing an offence. The appellant’s
case
was that the court should have suspended the interdict pending the
final dismissal of his application to the Administrator
for rezoning
of the property. Harms J, writing for the Full Court,
considered whether a court has a general discretion to
grant or
refuse an interdict. The learned Judge pointed out that in the
leading case on interdicts,
Setlogelo
v Setlogela
, this Court
granted a final interdict, having been satisfied that all the
requisites for the granting of a final interdict have
been met,
without considering at all whether it should, in the exercise of a
discretion, refuse the interdict. Harms J also
referred to
Peri-Urban Areas health
Board v Sandhurst Gardens (Pty) Ltd
1965
(1) SA 683
(T) [also reported at
[1965] 2 All SA 211
(T) – Ed],
where the court refused to suspend an interdict under similar
circumstances because, as Clayden J put it:
“where the
breach of law interdicted is a breach of a statute a stricter
approach is adopted.” As Harms J correctly
explains what
Clayden J meant to convey was not that there is a rule that a
statutory right is stronger than a common law right,
but simply that
the statutory breach referred to is a breach which is visited by
criminal sanctions (as is the case here).
The following
dictum
of Harms J is apposite:
“
It
follows from an analysis of these cases that discretion can, if at
all, only arise in exceptional circumstances. Furthermore,
I am
not aware of any authority which would entitle the court to suspend
the operation of an interdict where the wrong complained
of amounts
to crime.”
Harms J added that ‘[t]he
Court would thereby be abrogating its duty as an enforcer of the
law.’
[30]
The maxim
stare decisis
or the doctrine of precedent (see
Firstrand Bank v Kona & another
2015 (5) SA 237
(SCA),
paras 21-22) dictates that it must now be accepted as settled law
that a court has the discretionary jurisdiction, in exceptional
circumstances, to suspend or defer the operation of a final
interdict. However, no such discretion exists where the wrong
complained of amounts to a crime, except where the maxim
de
minimis non curat lex
(the law is not concerned with trivia)
applies. (See
Bitou Local Municipality v Timber Two
Processors CC and another
2009 (5) SA 618
(CPD), paras 26-32.)
Absent such discretion, a court has to ‘. . . uphold the rule
of law, refuse to countenance an
ongoing statutory contravention and
enforce the provisions of the Act.’ (
Lester
, para
28.)
[31]
I am of the view that, as from 31 May 2016, the contravention of the
zoning provisions of the scheme by the trust and EAM must
be
overlooked on the basis of
de minimis
. The trust is
presently using the trust property for office purposes pursuant to an
approved application for the rezoning
of the trust property from
residential 1 to business 4. It can safely be accepted that any
appeal against the decision of
the City of Johannesburg approving the
rezoning application subject to certain conditions is unlikely.
Makgosi and the 6
th
to 23
rd
respondents were
the only objectors. The 6
th
to 23
rd
respondents withdrew their objections and Makgosi did not object to
the rezoning application being approved subject to the conditions
proposed by the Development Planning Department of the City of
Johannesburg. No hearing was accordingly held and the rezoning
application was approved subject to those conditions that were
acceptable to Makgosi and the other objectors. It seems that
all that remains for the coming into operation of the approved
rezoning application is the formality of publication of the notice
in
the Provincial Gazette. These circumstances are exceptional and
this court, therefore, has the discretionary jurisdiction
to suspend
the operation of the final interdict, which should be granted.
[32]
Finally, the matter of costs. Makgosi remains substantially
successful and no cause exists for departing from the normal
rule
that costs follow the result. But Makgosi seeks a punitive
costs order against the trustees and EAM on the grounds that
they
resorted to procedural stratagems and dilatory tactics to delay the
finalisation of this matter until such time as the trust’s
pending rezoning application was considered by the City of
Johannesburg.
[33]
On the eve of the expiry of the
dies
to file their answering
affidavits the trustees and EAM delivered a notice in terms of rule
35(12) of the Uniform Rules of Court
wherein they requested the
production of some 52 documents. The documents sought were in
their own possession as they formed
part of the objections to the
proposed rezoning of the trust property. Subsection 5(8) of the
GRR Act enjoins a local authority
to send to an applicant by
registered post a copy of every objection received within a period of
14 days after the closure of the
period of objection. Not a
single document sought in the notice in terms of rule 35(12) was
referred to in the answering
affidavit that was eventually filed.
The procedural stratagem employed by the trustees and EAM, according
to Makgosi, delayed
the filing of the answering affidavit and
resulted in the matter not coming before this court before the end of
2015.
[34]
It seems to me that Makgosi is correct in its contention that the
trustees and EAM resorted to procedural stratagems and dilatory
tactics that were primarily designed to buy them time and keep
Makgosi out of its legitimate remedy. A punitive costs award
on
the scale as between attorney and client, therefore, seems justified
and appropriate in all the circumstances. (See
Delfante and
another v Delta Electrical Industries Ltd and another
1992 (2) SA
221
(C) at 233.)
[35]
In the result the following order is made:
(a) Subject to the
provisions of paragraph (b) hereof, the first to fourth respondents
are interdicted and restrained from using
or causing or permitting
the use of the immovable property known as Portion 2 of Erf 819
Bryanston Township, Registration Division
IR, province of Gauteng,
and situated at 3 Portman Road, Bryanston, Johannesburg (the
property) for any purpose (and particularly
not for business
purposes) other than for dwelling houses as permitted and prescribed
by its zoning residential 1 in terms of the
Sandton Town Planning
Scheme, 1980 (the scheme) for so long as the property is so zoned.
(b) The operation of the
interdict referred to in paragraph (a) hereof is suspended until the
date on which the 1
st
to 3
rd
respondents’
approved application for the removal of certain conditions in the
title deed relating to the property and for
the amendment of the
scheme by rezoning the property from residential 1 to business 4 (the
application), comes into operation as
contemplated in section 9 of
the Gauteng Removal of Restrictions Act 3 of 1996 (the Act), or until
the setting aside of the approval
and refusal of the application on
appeal in terms of section 7 of the Act, whichever is the earlier.
(c) The first to fourth
respondents are to pay the applicant’s costs of suit on the
scale as between attorney and client.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Dates
of hearing: 24 February and 24 June 2016
Date
of judgment: 13 July 2016
Counsel
for applicant: AW Pullinger
Instructed
by: Bowman Gilfillan Inc., Sandton
Counsel
for 1
st
– 4
th
respondents: HF Oosthuizen
Instructed
by: Richard Meaden Inc., Bedfordview