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[2021] ZAGPJHC 55
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Mayfair Residents Association and Others v City of Johannesburg Metropolitan Municipality and Others (2148/2019) [2021] ZAGPJHC 55 (19 May 2021)
THE
REPUBLIC OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
Date:
19
th
May 2021
CASE
NO
:
2148/2019
DATE
:
19
th
may 2021
In the matter between:
MAYFAIR
RESIDENTS ASSOCIATION
First Applicant
MAHOMED
,
IMRAAN
Second Applicant
EBRAHIM
,
SALIM
Third Applicant
EBRAHIM
,
EBRAHIM
Fourth Applicant
BHAMJEE
,
FEROZE SAYED
Fifth Applicant
EBRAHIM
,
ZAZIRA
Sixth Applicant
VORAJEE
,
RASHID AHMED MOHAMED
Seventh Applicant
and
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
First Respondent
CITY
OF JOHANNESBURG
PROPERTY
COMPANY SOC
LIMITED
Second Respondent
JOHANNESBURG
ROADS AGENCY (PTY) LIMITED
Third Respondent
CHUNG-FUNG
(PTY) LIMITED
Fourth Respondent
ANCHOR
PROJECTS (PTY) LIMITED
Fifth Respondent
Coram:
Adams
J
Heard
:
8 & 9 March 2021 – The ‘virtual hearing’ of the
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
19 May 2021 – This judgment was handed down electronically
by circulation to the parties' representatives by email, by being
uploaded to the
CaseLines
system of the GLD and by release to
SAFLII. The date and time for hand-down is deemed to be 10:00 on 19
May 2021.
Summary:
Township – Johannesburg Town Planning
Scheme, 1979, and City of Johannesburg Land Use Scheme, 2018 –
definition of ‘public
open space’.
Statute –
Interpretation – regard to be had to the language used in the
Schemes, the ordinary rules of grammar and syntax,
as well as the
context in which the provisions appear and the apparent purpose.
Nuisance – what constitutes – unlawful use of property
attracting heavy traffic congestion in turn causing nuisance
–
this may give rise to actionable nuisance.
ORDER
(1)
The first respondent is ordered and
directed to take the necessary steps to enforce the
City
of Johannesburg Land Use Scheme, 2018, in respect of Erf 56 Crown
North Township (‘Erf 56’)
and
to ensure that the use of Erf 56 complies with the law and that it is
only used for the purpose for which it has been zoned,
that being as
a ‘public open space’
.
(2)
The first respondent is ordered and
directed to take the necessary steps to prevent the fourth and fifth
respondents, or any other
person, from utilizing Erf 56 for any
commercial or industrial activity or as a parking lot.
(3)
The fourth and fifth respondents are
finally interdicted and prohibited from:
(a)
Initiating, undertaking, or continuing with
the construction of any structure, including temporary structures
made of metal or any
other material, on Erf 56 Crown North Township
(‘Erf 56’);
(b)
Admitting any construction vehicles,
forklifts or other heavy machinery for the purposes of carrying on
any work, including construction
work or the erection or moving of
steel or any other temporary structure or shed on Erf 56;
(c)
Intimidating
or harming the third applicant in any manner whatsoever;
(d)
Admitting any vehicles onto Erf 56 for
parking or for any other reasons connected to the Dragon City
Wholesale Mall or the Dragon
City Group of Companies;
(e)
Placing any shipping containers, metal
sheds, or any similar structure on Erf 56;
(f)
Conducting any business or activity on Erf
56 that causes a nuisance, including but not limited to: Conducting
welding or metalwork;
repairing or conducting work on trucks or
vehicles; the operating and/or letting of shops in shipping
containers or other structures;
conducting warehousing or storage;
the renting to or allowance of persons to stay overnight on Erf 56,
either in a vehicle or in
any other manner; and interfering with the
flow of general traffic on Hanover Street and Park Drive in any
manner, including by
the causing, directing or allowing of any person
to stop or direct the traffic on these roads in favour of traffic
travelling in
and out of erf 56 or to the Dragon City Wholesale Mall
on Park Drive.
(4)
The fourth and fifth respondents, jointly
and severally, the one paying the other to be absolved, shall pay the
applicants’
costs of this application, including the costs
consequent upon the employment of two Counsel.
JUDGMENT
Adams J:
[1]
Erf 56 in
Crown North Township in Johannesburg (‘Erf 56’ or ‘the
property’) is a piece of land between Hanover
Street and Park
Drive, which was and presently still is zoned in terms of the City of
Johannesburg Land Use Scheme, 2018, for use
as a ‘public open
space’. It used to be a vacant lot, described by the applicants
as a ‘green belt’ –
a park visited and frequented
by the residents from the surrounding areas. It was a green lung
which lay nestled between the residential
areas to the North and the
industrial and commercial districts to the South. That was many years
ago and only until about 2005
when the fourth respondent gradually
started taking over occupation of the property by using the space
inter alia
as overflow parking space for its adjacent retail operations and
business, styled ‘Dragon City Wholesale Mall’. Later
on
the fourth respondent also erected structures of a temporary nature,
in which certain of its employees were allowed to live.
[2]
The first
applicant is a voluntary association of residents from the
residential areas surrounding Erf 56 and the other applicants
all own
or occupy properties and premises in the immediate vicinity. The
first respondent is
the City of Johannesburg (‘the
City’), a metropolitan municipality established in terms of the
Municipal Structures
Act 117 of 1998,
and
the owner of Erf 56, which also falls within its local authority
jurisdiction. The second and third respondents are agencies
of the
first respondent. The first, second and third respondents I shall
refer to collectively as ‘the City of Johannesburg’.
The
fourth respondent (‘Dragon City’) is the owner of the
Dragon City Wholesale Mall across the road (Park Drive) to
the East
of Erf 56, and the fifth respondent (‘Anchor Projects’)
owns the property immediately adjoining Erf 56 to
the South. The
fourth and fifth respondents are related companies in that they have
the same shareholders and directors.
[3]
The applicants
were unhappy with what was happening on Erf 56 and with the fact that
they were being deprived of the use of a public
open space where they
could visit and be close to nature by using the space for recreation
purposes. They contend that Dragon City
and Anchor Projects, in
conjunction with the City of Johannesburg, in invading the public
open space as they did, acted unlawfully
in that they contravened the
City of Johannesburg Land Use Scheme, 2018 (‘the 2018 Land Use
Scheme’), and the Johannesburg
Town Planning Scheme, 1979,
which preceded the 2018 Land Use Scheme. The 2018 Land Use Scheme
repealed and substituted the 1979
Town Planning Scheme, but both of
these Schemes contain provisions relating to ‘public open
spaces’ which were almost
identical.
[4]
The applicants
apply in this opposed application, which came before me as a special
motion, for an order interdicting the respondents
from using the
property for the purpose other than for what it is zoned, that being
to be used as a ‘public open space’.
[5]
In their
notice of motion, which was issued on the 29 January 2019, the
particular interdictory relief sought by the applicants
against the
fourth and fifth respondents is for orders prohibiting them from:
(1)
admitting any
vehicles onto Erf 56, Crown Mines, Johannesburg (Erf 56) for parking
or for any other reasons connected to the Dragon
City Wholesale Mall
or the Dragon City Group of Companies;
(2)
placing any
shipping containers, metal sheds or any similar structures on Erf 56;
(3)
intimidating
or harming the third applicant in any manner whatsoever;
(4)
initiating,
undertaking or continuing with the construction of any structure,
including temporary structures made of metal or any
other material on
Erf 56;
(5)
admitting any
construction vehicles, forklifts or other heavy machinery for the
purposes of carrying on work, including construction
work or the
erection or moving of steel or any other temporary structure or shed
on Erf 56;
(6)
conducting any
business or activity on Erf 56 that causes a nuisance, including but
not limited to: conducting welding or metal
works; repairing or
conducting works on trucks and vehicles; the running and/or letting
of shops in shipping containers or other
structures; conducting
warehousing or storage; the rental or allowance of persons to stay
overnight thereon, either in a vehicle
or in any other manner.
[6]
The applicants
also seek an interdict prohibiting the fourth and fifth respondents
from interfering with the flow of general traffic
on Hanover Street
and Park Drive in any manner, including by the causing, directing or
allowing of any person to stop or direct
the traffic on these roads
in favour of traffic travelling in and out of Erf 56 or to the Dragon
City Wholesale Mall on Park Drive.
[7]
The issue in
this matter is whether there has been a contravention of the City of
Johannesburg Land Use Scheme, 2018 (‘the
2018 Land Use
Scheme’), and the 1979 Johannesburg Town Planning Scheme, which
preceded it. It is trite and generally accepted
that the purpose of
these Town Planning Schemes is to lay down guidelines for the future
spatial development of the area in such
a way as will most
effectively promote the order of the area and the general welfare of
the community concerned. The schemes also
include zoning schemes, the
general purpose of which are to determine use rights and to provide
for control over use rights and
over the utilisation of land in the
area of jurisdiction of a local authority.
[8]
Therefore, the
question to be answered is whether it is lawful for Dragon City and
Anchor Projects to use Erf 56, which is zoned
for use as a ‘public
open space’, as a parking lot for vehicles (including trucks
and other heavy duty vehicles) and
as premises on which they house
large marine containers used for storage and as retail outlets.
[9]
These
questions should be answered and the issues in this matter decided
against the factual backdrop, which is summarised succinctly
i
n
the paragraphs which follow. In that regard,
the
facts in this matter are, in my view, by and large common cause and I
say so notwithstanding assertions to the contrary by Dragon
City and
Anchor Projects. The real dispute between the parties lies in the
interpretation of the applicable legislative and regulatory
provisions and its application to the facts.
[10]
However,
before I deal with the facts, it may
be
apposite at this point to briefly refer to the most relevant
legislative provisions to place in context the issues which require
adjudication.
[11]
As already
indicated, Erf 56 is zoned as a ‘public open space’. In
terms of the Johannesburg Town Planning Scheme, 1979,
a ‘public
open space’ is defined as follows:
‘“
public
open space” means land zoned public open space, which is used
by the public as open space, park, garden, square or
for any game,
sport, recreation or cultural activity or other uses as may be
permitted by the City Council and includes restaurants,
cafés,
refreshment rooms and any apparatus, facility, structure or building
which in the opinion of the City Council is
necessary or expedient
for the purposes of such open space.’
[12]
In terms of
Use Table
‘C’
to the 1979 Town Planning Scheme, the purposes for which buildings
could be erected and used on open public spaces or the purposes
for
which such land may be used were limited to use as a ‘public
open space’. Under the heading ‘Purposes for
which
buildings may be erected and used and the purposes for which land may
be used only with the consent of the City Council’,
the Table
stated ‘none’, meaning no such uses are authorised. As
regards the purposes for which ‘public open
spaces’ may
not be used or buildings thereon erected or used, the Table expressly
provides that public open spaces are not
be used for any purpose
other than as a public open space.
[13]
In sum, a
‘public open space’ is to be used only as such and the
use thereof for any other purpose is expressly prohibited.
Therefore,
in terms of the 1979 Town Planning Scheme, there is an absolute
prohibition against the use of land which is zoned as
a ‘public
open space’ for any purpose other than as a ‘public open
space’ with or without the consent of
the City Council. And s
67 of the Scheme provides that any person who contravenes or fails to
comply with any provision thereof
shall be guilty of an offence.
[14]
At the time
that this application was launched by the applicants during January
2019 the Town Planning Scheme, 1979, was in force.
It has
subsequently been replaced by the 2018 Land Use Scheme, which
contains provisions which mirror the provisions contained
in the 1979
Scheme, except that the wording relating to the definition of ‘public
open space’ has been changed, although
the substance of the
definition remains the same. The definition of ‘public open
space’ in the 2018 Scheme reads as
follows:
‘“
Public
Open Space” means the use of a building/s and/or land which is
under the ownership of the Council or other public authority,
with or
without access control, and which is set aside for the public as an
open space for recreation, place of assembly, games,
sport or
cultural activity; including a park, playground, public square,
picnic area, public garden, nature reserve, outdoor or
indoor sports
stadium, and includes associated buildings and uses as permitted by
the Council, including restaurants, cafés,
golf course, and
any apparatus, facility, structure or building which in the opinion
of the Council is necessary or expedient for
the purposes of such
open space.’
[15]
Therefore, in
terms of the laws applicable, it is clear that land which is zoned as
a ‘public open space’ should only
be used for that
purpose, that being as an open space to be used by the public. Or, as
more accurately provided for in the 2018
Scheme, a ‘public open
space’ is land set aside for the public as an open space for
creation, place of assembly, games,
sport or cultural activity, and
therefore can and should only be used for such purpose.
[16]
I’ll
revert to that aspect of the matter later on in my judgment. Suffice
at this point to say that I agree with the submission
by Mr
Ohanessian SC, who appeared in this matter on behalf of the
applicants with Mr Ben-Zeev, that the City of Johannesburg could
never have granted any permission to any person to use Erf 56 for any
other purpose. It was never open to the City to consent to
Erf 56
being used as a parking lot or to house shipping containers or to
operate retail shops – it could only be used as
a ‘public
open space’, which includes it being utilised as a park,
playground, public square, picnic area, public garden,
nature
reserve, outdoor or indoor sports stadium, and associated buildings
and uses.
[17]
That brings me
back to the salient facts in the matter.
[18]
The position
at present is that Erf 56 is no longer a ‘public open space’
by any definition. Far from it. It is now
a piece of land, which has
been paved and which is for all intents and purposes occupied by
Dragon City and Anchor Projects and
is used by these entities for
commercial and industrial purposes. The space has also been fenced
off and the public do not have
access to the property as they would
have had if the property was being used as a ‘public open
space’. It is being
used by Dragon City and Anchor Projects for
the parking of vehicles, including heavy vehicles and trucks, and it
also houses huge
commercial shipping containers, used for purposes of
storage and in certain circumstances for retail purposes and as
selling points
for certain products.
[19]
The aforegoing
is a culmination of developments which started off as long ago as
2005, when, at the instance of Dragon City, graders
and other heavy
machinery were used on Erf 56 to level the ground with a view to
paving the space for parking purposes. Grass,
shrubbery and all other
greenery were also being removed from the land.
[20]
This process
was completed during 2006 and after the whole area of Erf 56 had been
paved, it was initially utilised only to park
light vehicles
belonging to the customers of Dragon City paying patronage to the
Wholesale Mall. Soon thereafter, heavy vehicles
were also being
parked on the property. The trucks were parked both during the day
and at night and the site became noisy at all
times.
[21]
Dragon City
also started placing large shipping containers on the site, which
were being used for storage and which were also rented
out to persons
for storage and for retail purposes. During this time and whilst
Dragon City, in total disregard of the Town Planning
and Land Use
laws of the City of Johannesburg, were using Erf 56 for every purpose
other than that for which it was lawfully zoned,
the applicants and
other residents of the surrounding areas complained bitterly to and
continuously raised with the City their
concerns about the flouting
of the Zoning Schemes by Dragon City. So, for example, during October
2012 the third applicant, who
also happens to be an attorney,
addressed a
communiqué
to the City of Johannesburg and to Dragon City, demanding that they
immediately stop the illegal construction on Erf 56, which
was
apparently aimed at erecting some or the other permanent building or
structure. Dragon City complied with the demand and reverted
back to
using Erf 56 for parking and storage purposes only.
[22]
On 17 August
2012 the City of Johannesburg and Dragon City concluded a written
lease agreement in terms of which Dragon City leased
from the City of
Johannesburg Erf 56 for a period of three years from 1 September 2012
to 31 August 2015. Clause 9.2 of the lease
agreement specifically
provided that the lease area would be leased to the lessee for
‘parking purposes’. On the expiration
of the written
lease agreement, Dragon City continued to occupy the said property in
terms of and pursuant to a monthly tenancy
presumably based on the
same terms and conditions contained in the written lease agreement.
At more or less the same time (on 19
November 2012) the City of
Johannesburg also granted Dragon City permission to pave Erf 56,
which incidentally had been done some
five years prior to that date,
and to store containers on the said property. Needless to say, Dragon
City and Anchor Projects,
in opposing this application place
substantial reliance on the lease agreement with the City of
Johannesburg and the latter’s
consent that containers could be
stored on the premises.
[23]
However,
as rightly contended by the applicants, the reliance by Dragon City
and Anchor Projects on the lease agreement is misguided.
The point is
that the City of Johannesburg is bound by the zoning provisions of
the 2018 Land Use Scheme, which expressly provides
that a ‘public
open space’ cannot be used for any purpose other than as a
public open space. I deal with this aspect
of the matter later on in
the judgment. Suffice to state at this point that the Johannesburg
City could not and did not consent
to Dragon City contravening the
Land Use Scheme. It bears emphasising that it was never open to the
City to consent to Erf 56 being
used as a parking lot, as it
purported to do, or to store shipping containers, or to operate
shops: it could only be used for the
purposes of a ‘public open
space’.
[24]
Moreover, the
City of Johannesburg leased Erf 56 to Dragon City on the express
proviso that it complies with the applicable zoning
laws. In that
regard, clause 10 of the lease provided that Dragon City was not to
contravene ‘any of the provisions of any
of the town planning
schemes applicable to the property’.
[25]
Further
demands were addressed subsequently by the third applicants, all of
which requested that Dragon City desist from its unlawful
use of Erf
56, failing which, so the demands indicated, further legal action
would be taken against them.
[26]
During
November 2018 the applicants' attorneys sent a letter of demand to
the City of Johannesburg, again demanding that it takes
the necessary
steps to enforce the town planning scheme in respect of Erf 56, to
remove all unlawful structures from that property,
and to take
immediate steps to stop the nuisance emanating from Erf 56. At the
same time a similar demand was addressed to Dragon
City.
[27]
Not
surprisingly, no response to these demands was received and during
January 2019 the applicants caused this application to be
issued. I
interpose here to mention that only Dragon City and Anchor Projects
are opposing this application. The City of Johannesburg
did not give
notice of its intention to oppose the application and one can only
but assume that they will abide the court’s
decision. It is
however instructive that the City has opted not to deal with the
assertion by the applicants that it (the City)
has failed to
discharge its statutory duties to ensure compliance with the Town
Planning and Land Use Schemes.
[28]
The applicants
also complain that the unlawful use of Erf 56 has given rise to a
nuisance that the applicants, who reside adjacent
to, or near Erf 56,
cannot reasonably be expected to tolerate. They are entitled, so the
applicants claim, to an order abating
the nuisance.
[29]
Howsoever one
views this matter, there can be no doubt that Erf 56 is at present
being used and has since about 2005 been used in
contravention of the
applicable zoning provisions of the City of Johannesburg Town
Planning and Land Use Schemes, which is binding
on all citizens and
inhabitants of Johannesburg and the City itself. In that regard, see:
Intercape
Ferreira Mainliner (Pty) Ltd and Others v Minister Of Home Affairs
And Others
[1]
.
The purposes for which Erf 56 has been used for the last
approximately fifteen years clearly fall outside the scope of a
public
open space as defined in either the 1979 Town Planning Scheme
or the 2018 Land Use Scheme. These uses are accordingly unlawful,
and
the applicants are entitled to the relief that they seek.
[30]
Dragon City
and Anchor Projects contend that 'public open space’ should be
interpreted broadly so as to mean that the City
may put any public
open space to such use as will serve the best interest of the area. A
so called ‘public good' use. I disagree.
There is no merit in
this contention if regard is had to the language used in the Schemes
and in the light of the ordinary rules
of grammar and syntax, as well
as the context in which the provisions appear, the apparent purpose
to which it is directed and
the material known to those responsible
for its production.
[31]
The
interpretation proposed by Dragon City and Anchor Projects cannot be
sustained. In both the Town Planning Scheme and in the
Land Use
Scheme the zoning is defined as a public open space. This is clear
from the examples of uses that are given: a park, a
garden, a square.
There is no mention in either definition of the public good or the
best interest of the area. On the contrary,
in both schemes the uses
that may be permitted by the Council are limited to those that are
‘necessary or expedient for the
purposes of such open space’.
[32]
I also agree
with the applicants’ submission that the interpretation
suggested by Dragon City and Anchor Projects would lead
to an
absurdity. It would mean that the Municipality could erect a factory,
an airport, or sewerage works on land zoned as a public
open space
provided that it believed that this was purportedly necessary for the
public good. The interpretation offered by the
Dragon City
respondents would frustrate the very purpose of the Schemes.
[33]
Therefore, as
already indicated, I am of the view that the interpretation contended
for by Dragon City and Anchor Projects cannot
be sustained. The
current use of the property by them is unlawful.
[34]
Dragon City
and Anchor Projects also submit, on the basis of the Town Planning
Ordinance 17 of 1939, which empowers the City of
Johannesburg to
lease land that it owns, that it is authorised to override its own
zoning legislation. Mr Ohanessian contends that
the power to lease
does not override the zoning of a property. I find myself in
agreement with this submission. There is no merit
in the argument by
Dragon City and Anchor Projects and one needs look no further than
the express wording of the provisions of
the Schemes, which
specifically prohibits the use of ‘public open space’ –
with or without permission from the
City of Johannesburg – for
purposes other than as space to be accessed and used by the public
for specific events, such as
for picnics, etc.
[35]
The applicants
are accordingly entitled to an order enforcing the applicable Scheme,
and to an order interdicting Dragon City and
Anchor Projects from
using Erf 56 unlawfully. From this unlawful conduct on the part of
these entities flow the nuisance complaints
by the applicants. As
rightly pointed out by the applicants, the use of Erf 56 in a manner
that is contrary to the applicable Scheme
is in itself unlawful and
must be brought to an end. Moreover, it causes a nuisance that the
applicants cannot reasonably be expected
to bear. They are entitled
to an order abating this nuisance.
[36]
Neighbours
have a right to the use and enjoyment of the property that they
occupy or upon which they reside. In that regard see:
Alaclas
Investments v Milnerton Golf Club
2008
[2]
.
Additionally, section 24(a) of the Constitution provides that the
applicants have a right to an environment that is not harmful
to
their health or well-being. In order to determine whether a nuisance
is actionable the question before me is whether the nuisance
is
unreasonable and cannot be expected or tolerated in the
circumstances. This requires a test not only of what a reasonable
person
would tolerate, but more importantly ‘an objective
evaluation of the circumstances and milieu in which the alleged
nuisance
has occurred’. (
PGB
Boerdery Beleggings (Edms) Bpk v Somerville 62 (Edms) Bpk
[3]
).
[37]
In making this
determination the court may take into account any relevant factors,
including the type of locality in which the nuisance
emanates. In an
area suitable for residential occupation, including an urban area,
other users of property in that area must be
accommodating of the
rights of residents; and the degree of its persistence and the times
when the noise is heard.
[38]
The nuisance
suffered by the applicants arises from Erf 56 being used by Dragon
City and Anchor Projects as a parking lot for their
shopping mall, as
well as from the operation of shops, which, in turn, result in noise
and fumes and smells of vehicles moving
unlawfully on and off Erf 56,
and idling on the property during the day and at night.
[39]
In
Intercape
(supra) the applicants complained of a nuisance arising from the
respondent operating a refugee office in the applicants' vicinity.
Among other things, it was alleged that the refugee office attracted
large crowds of persons, causing, among other things, an unreasonable
level of noise. Rogers AJ held as follows at para 150:
‘
As
regards noise, the court must apply common sense. One knows as a
matter of human experience that large crowds of people waiting
or
hoping to be helped, and no doubt often frustrated, will generate
substantial noise.
[40]
Applying this
reasoning
in
casu
, and
having regard to the photographic evidence placed before me, I come
to the conclusion that harm and consequent nuisance to
the applicants
arise from the commercial use of Erf 56 as a parking lot and to
operate shops, which has led to the massive influx
of traffic,
including commercial vehicles in the form of large trucks, and the
presence of a large number of persons on Erf 56.
Human experience
teaches us that this would generate a substantial amount of noise,
fumes and traffic that would disturb residents
that live adjacent to
the property, as well as those that live nearby – the very
definition of nuisance.
[41]
I am also of
the view that the nuisance suffered by the applicants is unreasonable
in the circumstances and they cannot be expected
to tolerate this
level of nuisance. This is so because the character of Crown North,
and in particular where the applicants reside,
is residential in
nature. As rightly pointed out by the applicants, one of the purposes
of maintaining Erf 56 as a public open
space is to create a natural
break and a buffer between the residential area of Crown North and
the commercial and industrial areas
to the South. The nuisance is
also perpetual. It is felt all day by the applicants, and also at
night.
[42]
In sum, I am
of the view that the current use of Erf 56 is in conflict with its
zoning under the applicable Scheme. The applicants
are residents
within the immediate vicinity of Erf 56 and are entitled to the
protection of the Scheme. They are entitled to relief
in the form of
an interdict prohibiting the unlawful use of Erf 56. In addition to
this, the use of Erf 56 gives rise to a nuisance
that the applicants
cannot reasonably be expected to tolerate. They are entitled to an
order of abatement.
[43]
The only
effective order that may be given in this matter is to prohibit the
use of Erf 56 for the purposes of parking vehicles,
storing
containers, or conducting shops or other commercial or industrial
activities.
[44]
As was held in
Intercape
,
‘the relief which would typically flow from a finding that a
person is using premises contrary to the zoning scheme is an
order
interdicting the unlawful use. The relief which would typically flow
from a finding that a person is causing an unlawful
nuisance is an
order for the abatement of the nuisance in the form of an
appropriately worded interdict.’
[45]
The same
principles apply in this matter. The applicants are entitled to an
effective remedy in the form of an order that brings
the unlawful
commercial activities on Erf 56 to an end.
[46]
There is one
other aspect which requires my attention and that relates to the
applicants request for a
mandamus
directing the City of Johannesburg to take the necessary steps to
enforce the Town Planning Scheme. Not only is the City the custodian
of that Scheme, and therefore has a legal duty to enforce it, but it
is also the owner of Erf 56 and is therefore responsible for
ensuring
that the use of Erf 56 complies with the law.
[47]
As rightly
submitted by Mr Ohanessian, the City of Johannesburg is an organ of
state that is obliged to respect, protect, promote
and fulfil the
rights in the Bill of Rights. It is also obligated, under section
152(1) of the Constitution, to, among other things,
ensure a safe and
healthy environment and to encourage the involvement of communities
and community organisations in the matters
of local government. The
City therefore has a constitutional obligation to enforce the
applicable land use scheme and to ensure
the applicants' right to an
environment that is not harmful to their health or wellbeing.
[48]
Lastly, the
applicants also seek an order enforcing Regulation 319(1) of the
National Road Traffic Regulations, 2000, which provides
as follows:
‘
No
person shall wilfully or unnecessarily prevent, hinder or interrupt
the free and proper passage of traffic on a public road.’
[49]
This relief
sought by the applicants is premised on the basis that from time to
time when traffic along Park Drive and Hanover Street
is congested,
certain persons direct the traffic with a view to alleviating the
congestion. The congestion
inter
alia
results from the unlawful use by Dragon City and Anchor Projects of
Erf 56. These respondents then attempt to rectify the situation
by
having person employed by them to direct traffic. This conduct,
whilst possibly not in accordance with the letter of the law,
does
not, in my view, falls within the ambit of regulation 319(1). I
cannot see how the conduct of these individuals amounts to
wilfully
or unnecessarily preventing or hindering or interrupting the free
flow of traffic. On the contrary, in their own peculiar
way, they are
attempting to assist the free and proper passage of traffic on the
public road.
[50]
As averred by Dragon City and Anchor
Projects, at peak times the traffic is so heavy on Hanover Road and
Park Drive that it has
become necessary for them at times to act in
the same manner as Outsurance points men do and render vitally
necessary assistance
to the general traffic. Effectively they are
taking steps to alleviate the traffic congestion – albeit
caused as a result
inter alia of their unlawful use of Erf 56 –
and they are therefore not creating a nuisance.
[51]
I am therefore
not persuaded that the applicants have made out a proper case for
this particular relief prayed for. They are accordingly
not entitled
to this relief.
Costs
[21]
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so. It follows that Dragon City and Anchor Projects, who
actively opposed the
application, should pay the costs of the
applicants.
[22]
The applicants
contend that the City of Johannesburg should also be held liable for
their costs. This is so, according to the applicants,
because the
City, which is the owner of Erf 56 as well as the custodian of its
own zoning laws, should have ensured that Erf 56
was being used
lawfully and in a manner that did not cause a nuisance to the
neighbouring residential areas.
[23]
In that
regard, the applicants referred the Court to
Biowatch
Trust v Registrar, Genetic Resources and Others
[4]
.
In that matter, Sachs J noted that there are matters that require the
state to perform a regulating role, in the public interest,
between
competing private parties. He held that the successful private
litigant was entitled to costs against the organ of state
in that
matter. Similarly, so the applicants submit,
in
casu
the
City of Johannesburg was not just required to play only a regulating
role, but it was also the owner of Erf 56, which means
that it was
constitutionally obligated to ensure that private entities, like
Dragon City and Anchor Projects, comply with the laws
of the City. It
failed to discharge that duty and therefore, so the argument on
behalf of the applicants is concluded, the City
should be held liable
for the applicants’ costs jointly with Dragon City and Anchor
Projects.
[24]
At first
blush, there appears to be merit in the applicants’ contention.
However, I am not persuaded that this matter is of
a constitutional
nature or that the
Biowatch
principle finds application. Moreover, the City of Johannesburg opted
not to oppose the application and, in my view, this is an
indication
that it has seen the folly of its ways and realised, albeit
belatedly, that the use of Erf 56 by Dragon City and Anchor
Projects
was unlawful. Also, and to their credit, when they leased Erf 56 to
Dragon City during 2012, the City of Johannesburg
did give notice to
Dragon City that it was required to ensure that it complied with the
zoning provisions of the Town Planning
and Land Use Schemes of the
city. This Dragon City failed to do.
[25]
For these
reasons, I am of the view that no costs order should be granted
against the City of Johannesburg.
I
do however intend awarding costs against the fourth and fifth
respondents, jointly and severally, the one paying the other to
be
absolved, in favour of applicants.
Order
[26]
Accordingly, I make the following
order: -
(1)
The first respondent is ordered and
directed to take the necessary steps to enforce the
City
of Johannesburg Land Use Scheme, 2018, in respect of Erf 56 Crown
North Township (‘Erf 56’)
and
to ensure that the use of Erf 56 complies with the law and that it is
only used for the purpose for which it has been zoned,
that being as
a ‘public open space’
.
(2)
The first respondent is ordered and
directed to take the necessary steps to prevent the fourth and fifth
respondents, or any other
person, from utilizing Erf 56 for any
commercial or industrial activity or as a parking lot.
(3)
The fourth and fifth respondents are
finally interdicted and prohibited from:
(a)
Initiating, undertaking, or continuing with
the construction of any structure, including temporary structures
made of metal or any
other material, on Erf 56 Crown North Township
(‘Erf 56’);
(b)
Admitting any construction vehicles,
forklifts or other heavy machinery for the purposes of carrying on
any work, including construction
work or the erection or moving of
steel or any other temporary structure or shed on Erf 56;
(c)
Intimidating
or harming the third applicant in any manner whatsoever;
(d)
Admitting any vehicles onto Erf 56 for
parking or for any other reasons connected to the Dragon City
Wholesale Mall or the Dragon
City Group of Companies;
(e)
Placing any shipping containers, metal
sheds, or any similar structure on Erf 56;
(f)
Conducting any business or activity on Erf
56 that causes a nuisance, including but not limited to: Conducting
welding or metalwork;
repairing or conducting work on trucks or
vehicles; the operating and/or letting of shops in shipping
containers or other structures;
conducting warehousing or storage;
the renting to or allowance of persons to stay overnight on Erf 56,
either in a vehicle or in
any other manner; and interfering with the
flow of general traffic on Hanover Street and Park Drive in any
manner, including by
the causing, directing or allowing of any person
to stop or direct the traffic on these roads in favour of traffic
travelling in
and out of erf 56 or to the Dragon City Wholesale Mall
on Park Drive.
(4)
The fourth and fifth respondents, jointly
and severally, the one paying the other to be absolved, shall pay the
applicants’
costs of this application, including the costs
consequent upon the employment of two Counsel.
L R ADAMS
Judge of the
High Court
Gauteng Local Division, Johannesburg
HEARD ON:
8
th
and 9
th
March 2021 – in a ‘virtual
hearing’ during a series of videoconferences held on the
Microsoft Teams
digital platform
JUDGMENT DATE:
19
th
May 2021 – judgment handed down
electronically
FOR THE APPLICANT:
Adv T Ohanessian SC, together with Advocate O Ben-Zeev
INSTRUCTED BY:
Webber Wentzel, Sandton
FOR THE FIRST, SECOND AND THIRD RESPONDENTS:
No appearance
INSTRUCTED BY:
No appearance
FOR THE FOURTH AND FIFTH RESPONDENTS:
Adv G Farber SC, together with Adv J L Kaplan
INSTRUCTED BY:
Ian Levitt Attorneys, Sandton
[1]
Intercape Ferreira
Mainliner (Pty) Ltd and Others v Minister Of Home Affairs And Others
2010 (5) SA 367 (WCC)
[2]
Alaclas Investments v
Milnerton Golf Club
2008 (3) SA 134
(SCA) at paras 15 and 24
[3]
PGB Boerdery Beleggings
(Edms) Bpk v Somerville 62 (Edms) Bpk
2008 (2) SA 428
(SCA) at para 9
[4]
Biowatch Trust v
Registrar, Genetic Resources and Others
2009 (6) SA 232
(CC) at para 28