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[2021] ZAGPJHC 148
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Mayfair Residents Association and Others v City of Johannesburg and Others (2148/2019) [2021] ZAGPJHC 148 (19 May 2021)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
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
in 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