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[2022] ZAGPJHC 286
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Ekhuruleni Metropolitan Municipality v Sibanda (26108/17) [2022] ZAGPJHC 286 (3 May 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
3
May 2022
CASE
NO:  26108/17
In
the matter between:
EKHURHULENI
MUNICIPALITY
Applicant
and
SIBANDA
Respondent
JUDGMENT
KATHREE-SETILOANE J:
[1]
The Ekhurhuleni Municipality (“the
Municipality”)  seeks interdictory relief, in this
application, to prevent the respondent,
the owner  of the
immovable property located at Erf no. 505 Delville, IR Gauteng ("the
property") from utilising the
property for purposes other than
permitted  by the zoning of the property as "Residential
1”  in terms of
the Ekurhuleni Town Planning Scheme,
2014 ("the Scheme").
Background
[2]
On 14 June 2016, Ms. Fikile Mdlalose (“Ms.
Mdlalose”), a Development Planning Inspector employed by the
applicant conducted an
inspection of the respondent’s property. Her
inspection revealed that the property is being used for “rooming
and lodging”
which, according to the applicant, is contrary to the
zoning of the property and therefore in contravention of the Scheme.
[3]
The
respondent’s property is currently zoned “Residential 1” in
terms of the Scheme. A property that is zoned “Residential
1”
under the Scheme may only be used for dwelling house and private
roads. It may, however, be used for certain secondary purposes
such
as a place of worship, place of instruction, social hall, child care
facility, guesthouse, home care facility; cattery, and
special uses
only with the special consent of the applicant.
[1]
[4]
The applicant alleges in its founding affidavit
that “[t]he respondent has “used and allowed the property to be
used for rooming
and lodging for business purposes and or related
activities” which is not for the purposes permitted in terms of the
Scheme.
[5]
The respondent took occupation of the property
during 2015 and has been living on the property with his five
children, aunt and her
husband, since then.  He contends, in his
answering affidavit that, he is not using the property for rooming
and lodging but
that the property was purchased, on 10 August 2015,
from Mr Mannie Neto (“Mr Neto”) who, due to financial
constraints,
could not afford alternative accommodation for himself
and his daughter. Thus upon transfer of the property, he asked them
to remain
on the property and reside in the cottage with his
daughter. The applicant acceded to the request by allowing Mr Neto to
live, rent-free,
in the cottage (on the property) as he had no
alternative accommodation nor the means to pay rental.
[6]
The respondent explains further that in 2016 he
was dismissed from his employment as a boiler maker. After his
dismissal he took on
odd jobs to enable him to pay his mortgage
instalments, but he still struggled to provide for his children. He,
therefore, supplemented
his income in 2017, by renting out one room
in the main house to a tenant on a month to month basis to assist
with the income to
support his family. At the date of deposing to the
answering affidavit, this tenant had been occupying the room for
three months.
[7]
The respondent says that when he took occupation
of the property in 2015, it consisted of a main house and a separate
cottage. There
were no informal structures on the property and to
date there are no informal structures on the property. During 2016,
he modified
the property by closing off the verandah  to create
an additional room within the structure of the main house.
[8]
There are no confirmatory affidavits from Mr Neto
and/or his daughter and the applicant’s aunt or her husband
confirming the respondent’s
version in so far as their occupation
of the property is concerned.  After the point was taken by the
applicant in its replying
affidavit, the applicant filed a
supplementary answering affidavit  in which he attached
confirmatory affidavits from
Mr Neto and his aunt, Mrs Monyake,
confirming his version. The respondent  also appended their
identity documents together with
those of his five children to his
supplementary affidavit.
[9]
The respondent filed an answer to the applicant’s
supplementary answering affidavit in which it states that its’
inspector, Ms.
Mdlalose, visited the property again on 15 May 2018 to
conduct a further inspection. On this occasion she was advised by Mr
Smangaliso
Dolo that he is the respondent’s cousin and resides on
the property rent-free. Ms. Mdlalose furthermore discerned that the
woman
who cleans the property, lives on it rent-free as well. She
apparently also found out that a Mr Menir (who according to the
respondent,
is  Mr Nteto) pays rental in the amount if
R3400.00 per month to the respondent, and that a person by the name
of “Chris”
pays rental in the amount of R1200.00 a month to the
respondent.
Anlaysis
[10]
As alluded to, the applicant’s core contention
is that the respondent is conducting rooming and lodging for business
on the property
in contravention of the Scheme. The respondent
contends, to the contrary, that the Scheme does not define the term
“rooming or
lodging” and  nor does that term appear in any
of the provisions of the Scheme or the Ordinance, hence it is not an
offence
under the Scheme. In retort, the applicant argues that the
respondent is renting (or providing occupation of) portions of the
property
to various persons and that by doing so, he is in
contravention of the Scheme. It argues that the label “rooming and
lodging”
which it uses in its founding papers to describe the
conduct complained of is of no consequence as  its complaint is
that the
respondent is using the property in a manner not permitted
by its zoning, and is therefore in contravention of the Scheme.
[11]
The letting of a dwelling house is, however, not
per se prohibited for a Residential 1 zoning under the Scheme.
Significantly, in
this regard, section 13(2)(b) of the Scheme which
deals with automatically permitted uses of the Scheme, provides that
a dwelling
house may be let in such a manner that not more than one
household together with four other persons or guests are to reside
therein,
and if any additional persons and guests are to be
accommodated, “the use of the property concerned will be construed
as that of
a guest house, boarding house or residential building and
the relevant permissions therefore must be obtained”.
[12]
Fundamental to the question of whether the
respondent is in contravention of the Scheme, is a determination of
whether the individuals
who are living on the property are a part of
the respondent's "household'.
[13]
"Household”
is defined in section 6 of the Scheme  as "an individual or
a couple with or without their family and
may also include a group of
not more than 4 (four) unrelated persons living together as a
family''.
[2]
The respondent
contends that the words “and may also include” in the definition
of household must be read disjunctively.  On
the responent’s
interpretation,  a "household” is an individual or couple
with or without their family and up to four
additional unrelated
persons living together as a family. The applicant on the other hand
contends for a disjunctive reading of the
words “and may also
include” where a “household”  is either an individual or
couple with or without their family or
a group of four unrelated
persons living together as a family.
[14]
The interpretation contended for by the applicant
is consistent with a contextual interpretation of the definition of
“household”.
Properly construed,  the words "and may
also include" in the definition of the "household” must
be read disjunctively.
On this reading, a "household” is
either "an individual or couple with or without their family"
or "a group
of not more than four unrelated persons living
together as a family".  The phrase “and may also include”
is meant to
extend the definition of “household” to include “an
unrelated group of not more than 4 persons living together as a
family”.
The words “and may include” have no bearing on the
words “an individual or couple with or without a family”. In
other words
they do not extend the definition of this form of
household to include “4 unrelated persons living together as a
family”. There
are only two kinds of households contemplated in the
definition: (a) a family in the form of an individual or couple with
or without
a family  or “a group of not more than four
unrelated persons living together as a family”. The definition
makes no provision
for a household that consists of an individual or
couple with their families and four additional unrelated persons.
[15]
Read in context, a disjunctive reading of the
words “and may include” in the definition of household is
consistent with the provisions
of section 13(2)(b) of the Scheme
which permits the letting of a "dwelling house" in such a
manner "that not more
than one household, together with 4 (four)
other persons or guests may reside therein". The clear intention
of the Scheme is
that those persons who may reside on property fall
into two categories - "a household” (of which there may only
be one) or
"other persons and guests". The section
distinguishes groups of persons who do not live together as a family
as "other
persons and guests".
[16]
The
overarching intention of the Scheme is  that a dwelling house
must be occupied by a single family whether, for want of a
better
term, “a traditional family” or a “non-traditional family”
comprising four unrelated persons who live together as
a family.
By affording  this category of unrelated persons the status of a
"family”, the definition of “household”
caters for a wider
definition of family.
[3]
[17]
On a contextual interpretation of the definition
of the term “household” read with section 13(2)(b) of the Scheme,
a property
zoned residential 1 property may be used to accommodate a
maximum number of persons equal to either:
17.1
an individual or couple, together with their
family (irrespective of the size of the family), and up to four
additional persons or
guests; or
17.2
Up to four unrelated persons living together as a
family, together with up to four additional persons or guests.
[18]
Should the owner of a property zoned residential 1
under the Scheme, however, intend to accommodate any additional
persons or guests
(over and above one household and four  other
persons or guest), section 13(2)(b) provides that "the use of
the property
concerned will be construed as that of a guesthouse,
boarding house or residential building and the relevant permissions
therefore
must be obtained." In other words, should the number
of persons accommodated on the property exceed a single household and
four
other persons and guests, without the requisite consent from the
Municiplaity, the owner will be considered to be in contravention
of
the Scheme.
[19]
But that is not the applicant’s case as set out
in its founding affidavit. Its case is squarely that the respondent
is carrying
on the business of rooming and lodging. Nowhere in its
founding papers does the applicant allege that the respondent is in
contravention
of the Scheme because the number of persons residing on
his property exceeds that contemplated in section 13(2)(b) of the
Scheme
and that, as a result of his failure to apply for consent to
house this number of persons on the property, his property is
construed
as that of a guesthouse, boarding house or residential
building. This is impermissible in law as the applicant would have
been aware
of the nature of the respondent’s purported
contravention of the Scheme at the time that the founding affidavit
was prepared. However,
no such case is made out in the founding
affidavit. For this reason alone, the applicant is not entitled to
the relief sought in
its notice of motion.
[20]
This notwithstanding, on the
applicant’s version he lets his property on a month to month to one
tenant for a monthly rental of
R1200.00. This in itself does not mean
that the applicant is running a business in contravention of the
Scheme. However, as I see
it, the only possible relevant category of
occupation that could give rise to a justifiable complaint against
the respondent is that
he is conducting the business
of
a guest house.
I
say this because in the Specialized land use table for Residential
1
[4]
,
a "guest
house” is a category of use that requires special consent of the
Municipality. “Guest house” is defined as follows
in the Scheme:
"
GUEST
HOUSE:
buildings
with
communal dining and kitchen facilities used for temporary paid
accommodation, for a maximum of 8 (eight) rooms, including:
back-packers,
bed and breakfast establishments and other similar
facilities, but excludes Hotels, Conference Centres, self-catering
units, chalets
and boarding houses.”
[5]
[21]
Notably, a key element of the contravention that would arise from the
conducting of a guest house is that accommodation
is provided on a
"temporary" basis.
5
[22]
The respondent’s version is
that there is one paying occupant who is in occupation on a
month-to­month basis and as at the date
of deposition of the
answering affidavit,
had
been in occupation for three months. Since this application was heard
some six years after the answering and supplementary affidavits
were
deposed to by the respondent, it must be assumed that this tenant is
still in occupation. It can hardly be said, in the circumstances,
that this single occupant is being housed on the property on a
temporary basis
[6]
as
envisaged
in the definition of "guest house". As indicated, this
person occupies on a permanent basis subject to one
month's
notice
.
[23]
This is very  different from the typical Guest House type
accommodation where a person will occupy for
a specified short number
of days with a definite agreed date of departure. There is nothing in
the allegations made by the applicant
which justify the conclusion
that the nature of the accommodation enjoyed by this one person falls
into this category.
[24]
Even if I were to accepts the contents of the applicant's
supplementary affidavit to the effect that Netto
(or Nteto or Mr
Menir, if this is the same person) pays   R3 400.00 per
month
;
and "Chris" pays R1 200.00 per
month,
their occupation still does not fall
within the definition of a Guest House as  there is no basis to
conclude that their occupation
is temporary.
[25]
Applying the definition of household referred to above, the
respondent and his children, his aunt (Palesa Monyake)
and her
husband, who are all related, form a household. Section 13(2)(b) of
the Scheme then allows for 4 additional persons who are
unrelated, who are at "worst"
Netto, his daughter, Nteto and the tenant - only 3 persons. Hence
there is no contravention, even before
Plascon
Evans
is applied.
[26]
However, if I were to accept the applicant’s
version which is that Ms. Palesa Monyake cannot be the respondent’s
aunt because
she is substantially younger than him, and for that
reason neither her or her husband fall within the term "family"
as
contemplated in the Scheme, and would have to be regarded as two
additional persons or guests over and above Mr Neto and his daughter
and the single tenant, then there would be five persons/guests living
on the property over and above the single household. This would
exceed the permissible number of persons that can occupy the property
without special consent from the applicant.   It
is not
clear on the papers whether the single tenant referred to by the
respondent in his answering papers is the same person as
Chris whom
the applicant’s inspector determined also lives on the property and
pays a monthly rental. There are also two additional
people that live
on the property, namely Mr Dlodlo who is apparently the respondents
cousin and a domestic worker, neither of whom
pays rental. It is not
clear whether the domestic worker works for the respondent or whether
Mr Dlodlo lives in the respondent’s
household or whether he is a
guest.
[27]
Were the court to find that as a result of
accommodating all or some of these people whether for rental or not,
the respondent is
in contravention of the Scheme, he would be
required to forthwith rehabilitate the property, by amongst other
things ensuring that
some of the existing occupiers vacate the
property. This will obviously impact on each of their rights to
housing  under section
26(3) of the Constitution.
12
Scheme,
Part 3: Table C -
Land Uses
[28]
Significantly, in this regard, the applicant seeks the following
relief in its notice of motion:
“
1.Ordering
the Respondent to forthwith cease the use of ERF No.505 Delville, IR
Gauteng for purposes which are not permitted under
the zoning of
“Residential 1”, such as for example, inter alia, using the
property for rooming and lodging for business purposes.
2.Restraining
and interdicting the Respondent from permitting the use of the
PROPERTY, through or by any other person or persons,
for purposes
which are not permitted under the zoning of “Residential 1” for
inter alia rooming and lodging business which is
being operated in
the property for as long as such use is prohibited on the PROPERTY,
in terms of the EKHURHULENI TOWN PLANNING SCHEME,
2014 (“The
SCHEME”) and as long as the PROPERTY remains zoned “Residential
1”.
3.
Restraining and interdicting the Respondent from using and permitting
the use of the PROPERTY for any other purpose than for the
use as
permitted and prescribed in terms of the zoning “Residential 1”
in terms of the SCHEME for so long as the PROPERTY is
zoned as such.
4.
Ordering the Respondent to forthwith remove from the PROPERTY all
items which relate to the use of the PROPERTY for purposes of
offices
business, or similar activities for so long as the PROPERTY remains
zoned “Residential 1”.
5.
Ordering the Respondent to stop using the PROPERTY for rooming and
lodging for business for so long as the PROPERTY remains zoned
“Residential 1”.
6.Ordering
the Respondent to forthwith rehabilitate the PROPERTY to conform to
the zoning “Residential 1” in terms of the SCHEME.
7.
That should the Respondent fail to comply with orders 1 to 6 above
within 30 days after date of service of this order at the PROPERTY,
then, and in such event:
7.1
The Sheriff of the above Honorable Court is authorised and directed
to take all reasonable
steps for purposes of giving effect to 4, 5
and 6 above and in particular, the Sheriff is authorised to seize and
take into custody,
all movables found at the PROPERTY which are used
in relation to the use of the PROPERTY for purposes other than
permitted under
the zoning “Residential 1” such as inter alia of
using the property for rooming and lodging for business purposes, and
to keep
such movables in his possession pending compliance with 7.2
hereunder; and
7.2
The Respondent shall be liable for payment of the Sheriff’s
reasonable fees and disbursements,
including storage costs, incurred
for purposes of 7.1 above, which sums shall become due, owing and
payable on demand, supported,
in so far as necessary, by vouchers.
8.
Ordering the Respondent to pay the Applicant’s costs of this
application.”
[29]
Relying for support on a recent
judgment of this Court in
City
of Johannesburg
Metropolitan
Municipality
v
K2016498847 (Ply) Ltd
[7]
("K2016"),
the
respondent submits that the application should be dismissed, as the
relief sought by the applicant would result in the eviction
of
persons living on his property in circumstances where they have not
been joined as respondents to the application.
[8]
[30]
In
K2016
, Wilson AJ held  that the granting of a town
planning type interdict to prevent the use of property as an
"accommodation establishment”
and orders permitting the
sheriff to enforce and give effect to the interdict and further seize
"all that is found at the property"
would result in
an order which sanctioned the eviction of the occupiers of the
property
which could not be permitted for want of
compliance with 26(3) of the Constitution, and which necessitated the
joinder of the occupiers
of the property.
[31]
The applicant submits that the court should not
follow Wilson AJ’s judgment in
K2016
as he incorrectly assumed that
the Sheriff would carry out an eviction of persons, who are not
permitted to occupy the property in
terms of 13(2)(b) of the Scheme,
without a court order specifically authorising him or her to do so.
The applicant argues that
the Sheriff has no authority to carry out
an eviction of any of the occupiers of the property without a court
order expressly authorising
such eviction.
[32]
The interdictory relief sought against the
respondent in prayers 1, 2 and 3 of the notice of motion coupled with
the relief prayed
for in prayers 4,5,and 6 read together with the
relief prayed for in prayer 7.2, which seeks to authorise and direct
the Sheriff,
in the event that the respondent fails to comply with
the interdictory relief granted, to take all reasonable steps for
purposes
of giving effect to prayers 4, 5 and 6 of the order sought,
and to seize and take into custody, all movables found at the
propert
which are used in relation to the use of the property for
purposes other than permitted under the zoning “Residential 1”,
by
implication sanctions the eviction of existing occupiers of the
the property who exceed the permissible number contemplated in terms
of section 13(2)(b) of the Scheme. As in the
K2016
case, this plainly envisages the eviction of the
occupiers in contravention of section 26(2) of the Constition.
[33]
Although the applicant argues that the Sheriff has
no authority to carry out an eviction, it is clear from the
far-reaching formulation
of prayer 7, in particular, that it will
effectively deprive any persons living on the property who exceed the
number allowed to
reside there, of their possessions and  right
to occupy the property. Significantly in this regard, whilst not
specifically
spelt out in prayer 7.2 of the notice of motion, the
prayer authorising the Sheriff to take all reasonable steps for
purposes of
giving effect to prayers 4,5 and 6  would entail
depriving any persons living on the property, who exceed the number
of persons
allowed in terms of section 13(2)(b) of the Scheme, of all
their possession and their right of occupation of the respondent’s
property.
To deprive people living on property of all their
possessions which the order contemplates, would render such persons
homeless
as they would be forced to vacate the property. This
would be tantamount to an eviction without a court order which would
be in contravention
of section 26(3) of the Constitution.
[34]
Thus,
in so far as
the rights and interests of the occupiers of the respondent’s
property will be affected by the outcome of the relief
sought by the
applicant in the notice of motion, it was obliged to join the
potentially affected individuals in order to give them
the
opportunity to become engaged in the dispute and to file affidavits
in opposition, or to take whatever steps each respective
individual
may consider necessary to protect his or her rights. This is
particularly so because the individuals who occupy the respondent's
property enjoy rights that have been accorded to them by the
respondent.
[35]
This being
the case,
the
applicant
was
obliged to cite and serve all the directly interested and affected
individuals who are in occupation, each one of whom has a direct
and
substantial legal interest in the outcome of the relief
sought
by
the applicant.
The
applicant’s failure
to
do so, is
fatal
to its
case.
[9]
This
is  a further basis on which to dimiss the relief which the
applicant seeks in its notice of motion.
Order
[36]
In the result, I make the following order:
1.
The application is dismissed with costs.
F
KATHREE-SETILOANE AJA
Counsel
for the applicant:
Mr N Felgate
Instructed
by
: KK MMUOE ATTORNEYS
Counsel
for the respondent
:  Mr KJ Van Huysteen
Instructed
by:
Fluxman’s Incorporated
Date
of hearing
:  27 February 2022
Date
of Judgment
: 3 May 2022
(Handed
down electronically by email to the parties’ legal representative
and
by being uploaded to
CaseLines
).
[1]
Section 45(1)
read with section 56(1) of the Ordinance provide for the procedure
to be followed when an owner of property intends
to use it for any
purpose other than the one for which it is zoned.
[2]
Section 6 of
the Scheme.
[3]
In
accordance with the caution raised by O'Regan J regarding the term
"family" in
Dawood
and Another v Minister of Home Affairs and Others,· Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000
(3) SA 936
at 131(CC)
[4]
The
Scheme,
Part
3: Table C -
Land
Uses.
[5]
Section 6 of the
Ekurhuleni
Town Planning Scheme.
[6]
Claassen's
Dictionary of Legal Words and Phrases refers to temporary as
"existing
of continuing for
a
limited
time".
Another
meaning of the word is
"not
permanenf' Mithal v Principal Immigration Officer
1947
(1) SA 811
(AD) at 812
[7]
City of Johannesburg
Metropolitan
Municipality
v
K2016498847 (Ply) Ltd
JDR
2523 (GJ)
[8]
During the pre-hearing
conference  the respondent inquired from the applicant whether
the relief sought in this application
would result in the eviction
of undefined persons living at the property and whether such persons
should have been cited. This
is recorded in the Joint Practice Note
of the parties.
[9]
Amalgamated
Engineering Union v Minister of Labour
1949
(3) SA 637
(A) at 660-661
;
and
Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd
2004
(2) SA 353
(W) at 3668- C/D
;
K2016
at para 14.