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[2017] ZAGPJHC 393
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Ekurhuleni Metropolitan Municipality v Erasmus (2017/6617) [2017] ZAGPJHC 393 (12 December 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE NO: 2017/6617
Not reportable
Not of interest to other judges
Revised.
12 December 2017
In
the matter between: -
EKURHULENI
METROPLITAN MUNICIPALITY
Applicant
And
ERASMUS,
JACOBUS HENDRIKUS
Respondent
JUDGMENT
OPPERMAN j
INTRODUCTION
[1]
The respondent is the registered owner of […]
K. Street, Kempton Park Extension 2 (Erf […] Kempton Park,
Extension
2 Township, Registration Division I.R., Gauteng) (“
the
property
”).
[2]
The applicant has launched this application
against the respondent by virtue of the fact that he is the
registered owner of the
property and is contravening the applicant’s
Ekurhuleni Town Planning Scheme 2014 (“
the
Scheme
”), by using the property
for purposes of a boarding house and boarding rooms which do not form
part of the dwelling house
erected on the property. The respondent
has not placed the material express terms of the Scheme, upon which
the applicant relies,
in dispute.
[3]
The applicant seeks an order interdicting
and restraining the respondent from:
3.1.
using or causing or permitting the use of
the property for any purpose other than for dwelling houses and
private roads, as permitted
by the zoning ‘
Residential
1
’ in the Ekurhuleni Town
Planning Scheme 2014;
3.2.
carrying on or causing or permitting the
property to be used for purposes of a boarding house and boarding
rooms; and
3.3.
costs on the scale as between attorney and
client.
FACTS
UNDERPINNING THE RELIEF SOUGHT
[4]
The Scheme was prepared, and published, by
the applicant as an approved scheme in Provincial Gazette 103 of 14
January 2015 from
which date it came into operation (“
the
effective date
”). At all material
times and subsequent to the effective date, the applicant has been
obliged, in terms of Section 58 of
the Town Planning and Townships
Ordinance, 1986 (“
the Ordinance
”),
to observe and enforce the provisions of the Scheme.
[5]
In terms of Section 58 of the Ordinance,
any person who contravenes or fails to comply with the provisions of
the Scheme shall be
guilty of an offence.
[6]
The property is zoned ‘
Residential
1
’ in terms of the Scheme. The
Scheme provides that the only purpose for which buildings may be
erected and used and the only
purposes for which land may be used
which are zoned as ‘
Residential
1
’, are ‘
dwelling
house
’ and ‘
private
roads’
. The terms ‘
dwelling
house
’ and ’
private
roads
’ are defined in the Scheme
as follows: ‘
dwelling house
’
means ‘
a dwelling unit which has
no other dwelling unit above or below it, but which may abut or be
physically connected with one or more
dwelling houses and may include
related outbuildings’
and
‘
private roads
’
means ‘
land used for access
purposes of which the ownership is vested in a legal entity other
that the Municipality or Controlling Authority
and shall be regarded
as a street for the purposes of building lines and servitudes’
[7]
By reason that the property is zoned
‘
Residential 1
’
in terms of the Scheme, the only purpose for which buildings may be
erected and used and for which the land may be used
is a dwelling
house and private roads.
[8]
The Premier has, in Proclamation No 23
dated 3 December 1994, declared the Greater Germiston Transitional
Local Council an authorized
local authority for the purposes of
chapters II, III and IV of the said Ordinance. The applicant is the
successor in law of the
Greater Germiston Transitional Local Council
and is an authorized local authority for the purposes of chapters II,
III and IV of
the said Ordinance.
[9]
On 16 September 2015 Monah Motsemme
(‘
Motsemme
’),
a City Development Inspector employed by the applicant, conducted an
inspection of the property and observed that it was
being illegally
used as a ‘Boarding House and Rooms’ in contravention of
the Scheme. The use of the property for this
purpose is undisputed.
[10]
On 28 September 2015 the applicant
addressed to the respondent, via registered mail, a notice of
contravention of the Scheme (‘
the
notice
’). In addition, the
applicant instructed the respondent, in terms of s 42 of the Town
Planning and Townships Ordinance,
15 of 1986, to cease all illegal
use of the property and restore it to its original purpose within 28
days of receipt of the notice.
[11]
The respondent denies having received any
of the demands or letters sent prior to the application having been
launched. He denies
being resident at the property and draws
attention to the sheriff’s return in respect of the letter of
demand which is dated
28 September 2015 but only served on 22
September 2016 (a year later), which reflects that the letter was
affixed to the principal
door of the property.
[12]
In opposition to the application the
respondent has filed both an answering affidavit and a document
styled “
Notice of Counter Motion
.”
The Notice of Counter Motion serves as a counter-application. In the
Notice of Counter Motion the respondent sought a postponement
of the
main application and in the event that the relief sought in the main
application is granted, that such relief be suspended
pending the
final adjudication of an application, lodged with the applicant on 14
June 2017, four months after the application
was served, for the
rezoning of the property. In the heads of argument filed on behalf of
the respondent he stated that he would
no longer be persisting with
the application for a postponement of the matter.
DEFENCES RAISED
[13]
The respondent relied on the following
defences, namely:
13.1.
the non-joinder of those people presently
leasing buildings on the property;
13.2.
the applicant’s decision to institute
these proceedings is “
ultra
vires
”; and
13.3.
the fact that he has now made application
to the applicant to have the property rezoned from Residential 1 to
Residential 4.
[14]
During argument, the
ultra
vires
argument was abandoned and the
non-joinder point, conceded.
Non-joinder of the tenants
[15]
If a
party has a direct and substantial interest in any order the court
might make in proceedings he or she is a necessary party.
The
term ‘
direct
and substantial interest’
means an interest in the right which is the subject matter of the
litigation and not merely a financial interest which is only
an
indirect interest in such litigation.
[1]
In High Court practice, it has been held that the rule of joining all
parties who have a direct and substantial interest is
not a
mechanical or technical one which
'must
be ritualistically applied
'
[2]
and compliance should not be insisted on if it would be
impractical.
[3]
It must be borne in mind that a defendant's right to demand that
other parties be joined, which must be distinguished from the
position where the court is asked to exercise its discretion to
join some other party, is very limited. A plaintiff need
not join as
co-defendant(s) lodgers, boarders or subtenants, when the plaintiff
sues the defendant (tenant) for ejectment.
[4]
The respondent has, other than to baldly state that ‘
they
have a direct and substantial interest in the outcome of this
application
’,
made no attempt to appraise the court of what that interest
comprises. His claims that, should prayers 1 and/or 2 of the
notice
of motion be granted, they shall be bereft of adequate housing and
shall have to be ejected from the property; and in the
event that the
relief sought by the applicant is granted, the occupants will have to
be ejected and that ‘
They
have no other place to stay other than the property…
’
has no foundation in fact. He has failed to attach a single affidavit
from any of the occupants confirming these allegations.
The
respondent has not alleged that the ‘
some
45
‘ occupants are impecunious people or are unemployed. His
suggestion that without his benevolent benefaction the occupants
would be relegated to ‘
typical
informal settlements
’
and be severely disadvantaged are without any basis in fact.
[16]
For all these reasons, the point of
non-joinder was correctly conceded and is dismissed.
Pending application for rezoning of
the property
[17]
The only substantive defence upon which the
respondent relies is that he has submitted an application to the
applicant for the rezoning
of the property from Residential 1 to
Residential 4. That application was lodged with the applicant on 14
June 2017.
[18]
The respondent admits that he acquired the
property with the express purpose of providing people with transient
housing and also
affordable and adequate housing for those setting
out in life and, in fact, he adapted the property for that very
purpose. The
fact that the respondent has made an application for the
rezoning of the property is an express acknowledgement that his use
of
the property as a boarding house is unlawful and in contravention
of the Scheme and that he is guilty of an offence. He, however,
waited until after he had been served with this application before
applying to the council for the rezoning of the property.
[19]
Until such time as the respondent’s
application has been adjudicated upon, he is obliged to comply with
the laws of the Scheme
and adhere to its regulations.
INTERDICT
[20]
The applicant seeks an interdict against
the respondent in order to prevent him from using or causing or
permitting the use of the
property for any purpose other than for
dwelling houses and private roads, as permitted by the zoning
‘
Residential 1
’
in the Ekurhuleni Town Planning Scheme 2014.
[21]
The
law in regard to the grant of a final interdict is settled.
[5]
An applicant for such an order must show a clear right; an injury
actually committed or reasonably apprehended; and the absence
of
similar protection by any other ordinary remedy. Once the applicant
has established the three requisite elements for the grant
of an
interdict, the scope, if any, for refusing relief is limited.
There is no general discretion to refuse relief.
That is a
logical corollary of the court holding that the applicant has
suffered an injury or has a reasonable apprehension of
injury and
that there is no similar protection against that injury by way of
another ordinary remedy.
A Clear Right
[22]
The source of the applicant’s right
is statutory and is recorded in the Scheme.
The respondent does not deny that the
applicant has a clear right to the interdict.
Apprehension of harm
[23]
In
United
Technical Equipment Co v Johannesburg City Council
[6]
the Full Court of this Division summarised the position as follows at
348 I - J (the respondent being the City Council):
‘
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 the land
illegally with a 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.’
(emphasis
provided)
[24]
By failing to assist the applicant to
comply with its legislative mandate would ensure the harm, which the
Scheme is aimed at preventing.
No Alternative Remedy
[25]
The
purpose of an interdict is to put an end to conduct in breach of the
applicant's rights. The applicant invokes the aid
of the court
to order the respondent to desist from such conduct and, if the
respondent does not comply, to enforce its order by
way of the
sanctions for contempt of court. Secondly, the existence
of another remedy will only preclude the grant of
an interdict where
the proposed alternative will afford the injured party a remedy that
gives it similar protection to an interdict
against the injury that
is occurring or is apprehended. That is why in many cases a court
will weigh up whether an award of damages
will be adequate to
compensate the injured party for any harm they may suffer. There
may also be instances where, in the case
of a statutory breach, a
criminal prosecution, in appropriate circumstances, will provide an
adequate remedy, but there are likely
to be few instances where that
will be the case. Thirdly, the alternative remedy must be a legal
remedy, that is, a remedy that
a court may grant and, if need be,
enforce, either by the process of execution or by way of proceedings
for contempt of court.
The fact that one of the parties, or even
the judge, may think that the problem would be better resolved, or
can ultimately only
be resolved, by extra-curial means, is not a
justification for refusing to grant an interdict.
[7]
[26]
The applicant submits that it has exhausted
all other remedies that are available to it. It delivered a
Notice to the respondent,
which was followed up by a letter of demand
both of which failed to elicit a response from the respondent.
NOTICE OF COUNTER MOTION
[27]
The
relief relating to the postponement was not pursued. The respondent
did, however, request that in the event of the order being
granted,
it be stayed pending finalisation of the re-zoning application. The
applicant opposed this request relying on, in the
main,
United
Technical Equipment
(supra)
[8]
at p 347 where the general principle was stated that a court has no
general discretion to defer the operation of an interdict and
has
none when doing so would permit the commission of an offence. Mr
Birkowitz drew attention to the decisions of
Hotz
(supra) and
Readam
[9]
,
where such principles were re-stated.
[28]
Mr
Thompson, representing the respondent, argued that this matter is to
be distinguished from the
United
Technical Equipment
matter as this case does not involve a business whereas the
United
Technical Equipment
matter related to a company. The distinction escapes me, but it would
appear that the
United
Technical Equipment
principle has been applied to both companies and individuals.
[10]
Be that as it may, the respondent is clearly too, running a business
although he failed to disclose the terms of the agreements
concluded
with his tenants.
[29]
Assuming, the court were empowered to order
such a stay, no facts have been placed before me to assess what the
considerations for
a successful application for re-zoning are, what
the respondents prospects of success in this regard are and when this
process
will, in all likelihood, be completed. I thus have no facts
upon which to exercise a judicial discretion, assuming I have one.
COSTS ON AN ATTORNEY CLIENT SCALE
[30]
The
applicant seeks a costs order on the scale as between attorney and
client and argues that it has a statutory duty to enforce
the provisions of the Scheme. The respondent contends that he
did not receive the notices sent to him. The respondent was,
however,
aware that his activities at the property contravened the Scheme.
From acquisition of the property until receipt of this
application,
the respondent has done very little to ensure that his activities are
legalised. In the words of Southwood J
[11]
:
‘
This
deliberate flouting of the law in the face of lawful attempts by the
applicant to perform its statutory duty warrants a special
costs
order. To permit such conduct would result in anarchy, particularly
in a city where it is notorious that contraventions of
the scheme, in
circumstances such as the present, are widespread.’
[31]
There is no good reason why the applicant
should be out of pocket when it performs its statutory duty of
enforcing the Scheme.
ORDER
[32]
The applicant has made out a proper case
for the relief sought in the notice of motion and I accordingly grant
the following order:
32.1.
The respondent is interdicted and
restrained from using or causing or permitting the use of the
immovable property being Erf […]
Kempton Park, Extension 2
Township, Registration Division I.R., Gauteng situate at […]
K. Street, Kempton Park extension
2 (‘
the
property’
) for any purpose other
than for dwelling houses and private roads, as permitted and
prescribed by the zoning ‘
Residential
1
’ in the Ekurhuleni Town
Planning Scheme 2014 for so long as the property is so zoned.
32.2.
In particular, and without limiting the
generality of the Order in paragraph 33.1 hereof, the respondent is
interdicted and restrained
from carrying on or causing or permitting
the property to be used for purposes of a boarding house and boarding
rooms.
32.3.
The respondent is ordered to pay the costs
of this application as between attorney and client.
___________________________
I
OPPERMAN
Judge
of the High Court
Gauteng
Division, Johannesburg
Heard:
5 December 2017
Judgment
delivered: 12 December 2017
Appearances:
For
Applicant: Adv Birkowitz
Instructed
by: Moodie & Robertson
For
Respondent: Adv Thompson
Instructed
by: Schumann Van Den Heever & Slabbert Inc
[1]
ABBM
Printing and Publishing (Pty) Ltd v Transnet Ltd
1998 (2) SA 109 (W)
[2]
Wholesale
Provisions Supplies CC v Exim
International
CC
1995
(1) SA 150
(T) at 158D–E; and
Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd
2004
(2) SA 353
(W) at 368C–E
[3]
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs
2005
(4) SA 212 (SCA)
at
226H–J
[4]
Sheshe
v Vereeniging Municipality
1951 (3) SA 661
(A); Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd
2004 (2) SA 353
(W) at 371H–373B
[5]
Hotz and
Others v University of Cape Town
2017
(2) SA p 497
[6]
1987 (4) SA
343
(T) at 348 I-J;
Lester
v Ndlambe Municipality and others,
2015 (6) SA 283
(SCA) at para [27]
[7]
Hotz
matter
supra
[8]
Footnote 6
[9]
Readam
SA (Pty) Ltd v BSB
,
2017 (5) SA 184 (GLD)
[10]
Hotz
(supra)
[11]
City of
Tshwane Metropolitan Municipality v Grobler and Others
2005 (6) SA
61
(T) at para12