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[2019] ZAGPJHC 238
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Ekurhuleni Metropolitan Municipality v Nkosi and Another (13191/17) [2019] ZAGPJHC 238 (4 June 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.: 13191/17
In
the matter between:
EKURHULENI
METROPOLITAN
MUNICIPALITY
Applicant
And
VELAPHI
MOSES
NKOSI
First
Respondent
(ID
NUMBER: …)
SIBONGILE
PETRONELLA
NKOSI
Second
Respondent
(ID
NUMBER: …)
JUDGMENT
BOKABA
AJ
1.
The applicant, Ekurhuleni Metropolitan
Municipality, seeks an order interdicting and restraining the
respondents from using, continuing
to use or permitting the use of
their property for purposes other than those permitted for properties
zoned as “Residential”
in terms of the Ekurhuleni Town
Planning Scheme 2014 (“the Scheme”). In particular,
the applicant seeks to interdict
and restrain the respondents from
using their property as a boarding house, a lodging house or for
accommodation of more than one
household.
2.
The respondents, who are married in
community of property, are the registered owners of the property
situated at […] Drive,
Norkem Park, Extension 4, Kempton Park,
Gauteng. It is common cause that the respondents do not live on
the property but
have erected and constructed seventeen (17) units on
the property for purposes of boarding and lodging. It is also
undisputed
that the buildings and units were erected without the
lawful approval by the applicant and that, to date, the respondents
have
not made any application to amend the Scheme to permit or
include business rights.
3.
The Scheme was promulgated on 14 January
2015 and established in terms of section 18 of the Town Planning
and Township
Ordinance 15 of 1986 (“the Ordinance”).
In terms of section 19 of the Ordinance the general purpose of a
town planning scheme is to achieve the coordinated 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 a development.
4.
Paragraph 13.1 of the Scheme provides that
land or building shall only be used as stipulated in Table C of
the Scheme.
Table C of the Scheme prescribes that land use
under “Residential” may only be used for boarding house
or private
room.
5.
It is apparent that the municipality
carried out an inspection on the applicant’s property on two
separate occasions, through
its City Planning Inspector, Ms Mokgadi
Matlou. During the first inspection which was carried out on
20 July 2015, Ms
Matlou found that there were seventeen rooms or
units on the property which were not interconnected and seven (7) of
which were
still under construction. On 28 August 2015
and, following the inspection, the Municipality issued a
contravention notice
which reads, in part, as follows;
“
CONTRAVENTION
OF THE EKURHULENI TOWN PLANNING SCHEME, 2014: ALLEGED ILLEGAL LAND
USE OF ERF […], […] DRIVE, NORKEM
PARK X4.
A recent site
inspection conducted by an official of this Department on 20 July
2015, has revealed that the subject property
is being illegally used
for the purpose of ‘Boarding Rooms’.
In terms of the
abovementioned Town Planning Scheme, the abovementioned property is
currently zoned Residential 1 purposes.
The use which is
presently conducted from the property is illegal, in terms of this
zoning and therefore constitutes a direct contravention
of the said
town planning scheme and consequently renders you liable for
prosecution.
You are hereby
accordingly instructed, in terms of the provisions of section 42
of the Town Planning and Township Ordinance
15 of 1986 (as amended),
to cease the abovementioned illegal use and restore the property to
its original purpose, within twenty-eight
(28) days from the day of
this letter.
…”
6.
The second inspection on the property was
carried out by Ms Matlou on 30 June 2016. In terms of the
inspection report
compiled by Ms Matlou on 27 July 2016, there
were seventeen (17) rooms on the property, seven (7) of which were
still under
construction and nine (9) rooms were rented out.
She also found out that one of the rooms was used by the caretaker of
the
property. The report also reveals that there was an adult
male who confirmed to have been renting one of the rooms for a period
of two (2) months. Another notice of contravention was issued
by the Municipality through its attorneys on 3 November
2016.
In terms of the notice, the respondents were instructed to cease
using their residential home as boarding rooms and
further instructed
to restore the property to its original purpose in terms of the
Scheme.
7.
The respondents have, in their answering
papers, conceded that the Scheme does not make provision for a
boarding house to be erected
on the property and that the owner may
only, through special consent or written consent, use the property
for purposes other than
the primary uses as stipulated in the
Scheme. The respondents further state that they intend to bring
an application for
special consent to the municipality in due
course. They further state that the tenants who reside on the
property do not
have their own dwelling and depend on accommodation
facilities offered by the respondents. It is also the
respondents’
contention that the application brought by the
Municipality is tantamount to an application for eviction given that
the tenants
who are currently occupying the property will have to be
moved, including some minor children who reside on the property.
8.
The Municipality has invoked, in the main,
the provisions of section 42 of the Ordinance in seeking the
relief in this application.
Section 42 of the Ordinance
empowers the local authority, where any person acts in conflict with
a provision of a town planning
scheme and undertakes or proceeds with
the erection or alteration or addition to a building to direct a
person, to discontinue
such erection, alteration, addition or other
work. In terms of section 42(5) any person who contravenes
or fails to
comply with the directive issued in terms of
subsection (1) shall be guilty of an offence. Furthermore,
section 58
of the Ordinance provides that any person who
contravenes or fails to comply with a provision of an approved scheme
shall be guilty
of an offence.
9.
The respondents have clearly, both in their
answering papers and during oral submissions, conceded that they are
in breach of the
Scheme and the Ordinance. They, however, state
that they require reasonable time to apply for rezoning whilst their
tenants
are also afforded an opportunity to search for affordable
alternative accommodation in the area.
10.
I
am only able to restate that a town planning scheme is conceived in
the general interests of the community and the protection
of those
interests falls within the ambit of the municipal function.
[1]
In my view what the respondents seek is to continue with their
illegality while at some point in the future, or an indeterminate
time, they will apply to the Municipality for the rezoning.
This is untenable. As stated, the law could not countenance
an
ongoing illegality which was also criminal offence as to do so would
be to subvert the doctrine of legality and to undermine
the rule of
law.
[2]
11.
I
find that the respondents have not raised a genuine concern about the
alleged presence of minor children in the boarding houses.
The
respondents have made no genuine attempt to appraise the Court of the
full facts around the presence of minor children who
will be affected
by the order sought by the Municipality. The respondents’
claim in this regard is without any basis
in fact.
[3]
12.
I am mindful that there are three (3)
requirements for a final interdict sought by the Municipality in this
matter. The three
(3) requisites for the granting of a final
interdict are;
12.1.
A clear right on the part of the applicant;
12.2.
An injury actually committed or reasonably
apprehended;
12.3.
The absence of any other satisfactory
remedy available to the applicant.
13.
I am satisfied that the three (3)
requisites are present for the grant of a final interdict in this
matter. As to the existence
of a clear right, the respondents
have conceded, correctly so in my view, that the Municipality’s
right is founded under
the Scheme. The respondents go further
to concede that they have contravened the provisions of the Scheme.
14.
As to the apprehension of harm, there is an
obligation on the Municipality to enforce the law in the face of an
ongoing illegality
perpetrated by the respondents. This
obligation has been expressed as follows;
“
[27]
I conclude by reverting to what Haram J said in United Technical
Equipment (supra) with regard to the City Council’s
obligations
to enforce the law in the face of an ongoing illegality being
perpetrated by the appellant company in that case:
‘
The
respondent has not only a statutory duty but also a moral duty to
uphold the law and to see to due compliance with its town
planning
scheme. It would in general be wrong to whittle away the
obligation of the respondent as a public authority to uphold
the
law. A lenient approach could be an open invitation to members
of the public to follow the course adopted by the appellant,
namely
to use land illegally with the hope that the use will be legalised in
due course and that pending finalisation the illegal
use will be
protected indirectly by the suspension of an interdict.’”
[4]
15.
Allowing the respondents to continue to
perpetuate their illegality with the hope that at some point in the
future they will apply
for the rezoning of the property whilst on the
other hand precluding the Municipality from discharging its
obligations under the
Scheme, will be tantamount to countenancing an
ongoing illegality which is also a criminal offence.
16.
As to the alternative remedy, all the
respondents could say is that they need time to apply for the
rezoning of the property and
that this will permit the resolution of
any concerns raised by the Municipality in terms of the Scheme.
The respondents seek
to be afforded additional time to apply to the
Municipality for rezoning, the outcome of which may not even provide
the Municipality
and the community in whose interest the Scheme has
been conceived, with a remedy. In my view, further delays in
compliance
with the law, in particular, the Scheme, will cause the
continued violation of a clear right and a continuing injury to the
Municipality
and the community.
17.
It is my view that there will not be any
adequate remedy for the continued unlawfulness perpetrated by the
respondents other than
the enforcement of the Scheme. To fathom
any other remedy or delay will lead to unjust result.
18.
The
applicant seeks costs on a scale between attorney and client.
The respondents have been aware since 28 August 2015
that they
are in contravention of the Scheme and have done nothing to try and
regularise their activity. In their papers,
the respondents
only state that they will be instructing a Town Planner to begin the
process of rezoning in due course. It
is plain that the
respondents are well aware that their conduct is in contravention of
the Scheme and the Ordinance, yet they have
to date not taken any
steps to regularise that conduct. The Municipality, on the
other hand, has a duty to enforce the Scheme.
This justifies a
special costs order.
[5]
19.
I
am satisfied that the Municipality has met the requirements of a
final interdict sought in the application. Owners of property
governed by the Scheme are obliged to use the property and any
building thereon in conformity with the requirements of the Scheme
and comply with the lawful directives issued to them by the
Municipality.
[6]
I make
the following order:
19.1.
the respondents are interdicted and
restrained from continuing to use Erf […], […]
Drive, Norkem Park Extension
4, Kempton Park, for any purpose which
is prohibited under the zoning of residential 1 in terms of
Ekurhuleni Town Planning Scheme
2014 for as long as the property is
so zoned;
19.2.
the respondents are interdicted and
restrained from using the property as boarding rooms and for lodging
purposes and/or similar
activity;
19.3.
the respondents are ordered to pay the
costs of this application, jointly and severally, the one paying the
other to be absolved,
on on the scale as between attorney and client.
_________________________
TJB BOKABA
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES:
FOR APPLICANT: ADV E
SITHOLE
INSTRUCTED
BY: MOHAMED RANDERA & ASSOCIATES
FOR RESPONDENTS: ADV
TSALONG
INSTRUCTED BY: MAEMA
ATTORNEYS
[1]
BSB
International Link CC v Readam South Africa (Pty) Ltd
2016
(4) SA 83
(SCA), at para 24;
The
Administrator, Transvaal and The First Investments (Pty) Limited v
Johannesburg City Council
1971 (1) SA
56
(A), at 70D.
[2]
BSB
International Link CC,
supra, at para 22.
[3]
See
-
Ekurhuleni
Metropolitan Municipality v Erasmus
[2017] ZAGP JXC 393 (12 December 2017).
[4]
Lester
v Ndlambe Municipality
2015 (6) SA 283
(SCA), at para 27;
See also –
BSB
International Link CC
, supra, at para 22.
[5]
City
of Tshwane Metropolitan Municipality v Grobler
2005(6) SA 61 (T), at paras 10 to 12.
[6]
City
of Tshwane Metropolitan Municipality v Grobler
(supra),
at para 6.