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[2014] ZASCA 207
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Rustenburg Local Municipality v Mwenzi Service Station CC (20146/2014) [2014] ZASCA 207; [2015] 1 All SA 315 (SCA) (1 December 2014)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 20146/2014
Reportable
In the matter
between:
RUSTENBURG
LOCAL
MUNICIPALITY
....................................................................
APPELLANT
and
MWENZI
SERVICE STATION
CC
.............................................................................
RESPONDENT
Neutral
citation:
Rustenburg Local
Municipality v Mwenzi Service Station
(20146/2014)
[2014] ZASCA 207
(1 December 2014)
Bench:
Brand, Ponnan, Leach, Saldulker JJA and
Mathopo AJA
Heard:
14 November 2014
Delivered:
1 December 2014
Summary
:
Local Government Ordinance 17 of 1939 – whether dedication of
certain road lanes to buses as part of the Municipality`s
planned
rapid transport network project constituted the permanent closure of
those streets or roads as contemplated by s 67; Town
Planning and
Townships Ordinance 15 of the 1986 read with Land Use Management
Scheme – whether planned construction a multi
portal central
bus station is permissible under any of the defined land uses under
the existing zoning.
ORDER
On
appeal from
: North West High Court,
Mafikeng (Gutta J sitting as court of first instance)
Save for
paragraph (c) of the order of the court below, which is set aside,
the appeal and the cross appeal are dismissed, with
costs in each
instance to follow the result.
JUDGMENT
Ponnan
JA (Brand, Leach, Saldulker JJA Mathopo AJA concurring):
[1]
During 2007 the National Department of Transport tabled before
Parliament a ‘public transport strategy and action plan’
that proposed the planning, design and development of integrated
rapid transport networks in certain major urban centres in South
Africa. The plan was approved by Cabinet and 12 cities, including
Rustenburg, were identified where such networks were to be
introduced.
During 2008 the appellant, the Rustenburg Local
Municipality (the Municipality), invited tenders for the
investigation and development
of such a network in Rustenburg. The
following year the Rustenburg Integrated Network, a joint venture was
appointed and commenced
feasibility studies, the planning and design
of the scheme, as well as the development of a financial and
operational model. In
July 2011 the Rustenburg Rapid Transport (RRT)
was officially launched by the Municipality.
[2] By
the middle of 2012 the initial planning and design of the RRT project
was completed and construction commenced on its first
phase, which
included the widening of certain roads and the establishment of RRT
lanes in some of the outlying areas of Rustenburg.
It was
contemplated that the project would then progress to the construction
of the RRT network within the Rustenburg central business
district
(the CBD) including the construction of a central bus station on
President Mbeki Drive between Nelson Mandela and Oliver
Tambo Drives.
It is the envisaged creation of the dedicated bus lanes and the plan
to establish a central bus station in the CBD
that has given rise to
the dispute, the subject of the present appeal.
[3] The
respondent, Mwenzi Service Station CC (Mwenzi), conducts business as
a BP franchisee on the corner of Nelson Mandela and
President Mbeki
Drives. Mwenzi accepts that the RRT project is ‘visionary’
and that it ‘in principle supports
[the] project’.
That notwithstanding on 19 January 2012 its attorney wrote to
the Municipality:
‘
My
business is situated on the corner of Nelson Mandela and Pres Thabo
Mbeki street, these are the two streets that the bus route
will be on
and during construction and after the implementation the traffic flow
on and into my service station will greatly be
affected in a negative
way. At least 50% of my business will be lost during this time. By
2015 all taxis operating in the CBD will
have ceased and only buses
will be allowed. At the moment 40% of my business consists of taxis.’
[4] Mwenzi
accordingly sought compensation from the Municipality for the adverse
effect that it alleged the establishment of the
RRT would have on its
business. On 13 August 2012, and after an exchange of correspondence
and several meetings between the parties
had proved fruitless, the
Municipality informed Mwenzi that it was not entitled to
compensation. As a result on 28 March 2013 Mwenzi
applied to the
North-West High Court, Mafikeng for an order in the following terms:
‘
1.
The Respondent is ordered to comply with the provisions of section 67
of Local Government Ordinance 17 of 1939, in the public
street
closures and/ or the diversion of streets that are required for the
implementation of the Rustenburg Rapid Transport Network.
2.
The Respondent is ordered to comply with the Town Planning and
Township Ordinance 15 of 1986 read together with the Rustenburg
Town
Planning Scheme 2005 as far as the rezoning of public streets that
are to be public buildings, in the Rustenburg Rapid Transport
Network.
3.
That the respondent is restrained from the further implementation of
the RRT in the CBD of Rustenburg pending compliance with
orders 1 and
2 above.’
[5] In
support of the relief sought, Mwenzi contended that the dedication of
certain road lanes to buses as part of the Municipality`s
planned RRT
project constituted the permanent closure of those streets or roads
as contemplated by s 67 of the Local Government
Ordinance 17 of 1939
(the 1939 Ordinance) and that, as a consequence, it was accordingly
entitled to compensation in terms of s
67(4). In the alternative,
Mwenzi contended that the planned construction of the multi portal
central bus station (CBS) with ancillary
amenities (such as offices,
ticket and information booths, storage facilities and sheltered
passenger waiting areas) on the median
of President Mbeki Drive is
not permissible under any of the defined land uses in terms of the
existing zoning. It accordingly
contended that the Municipality was
obliged to rezone that portion of land in terms of the Town Planning
and Townships Ordinance
15 of the 1986 (the 1986 Ordinance) read with
the Rustenburg Land Use Management Scheme (the Scheme), which as well
would entitle
it to compensation in terms of s 44 of that Ordinance.
[6] Two
issues thus arose for determination before the high court (as also
before this court on appeal) namely: first, whether the
Municipality
is obliged to comply with s 67 of the 1939 Ordinance before it can
reserve or dedicate street lanes to buses providing
public transport
in the Rustenburg CBD; and second, whether it is necessary for the
Municipality to rezone President Mbeki Drive
between Nelson Mandela
and Oliver Tambo Drives before it may construct the planned CBS on
the island or median of that road.
[7] The
high court (per Gutta J) decided the first issue in favour of the
Municipality and the second issue against it. It accordingly
ordered
the Municipality to comply with the 1986 Ordinance read with the
Scheme ‘for the rezoning of the President Thabo
Mbeki Street
for the establishment of the [CBS] in the [RRT] Network’ and
interdicted it from ‘implementing and establishing
the [CBS] in
the Rustenburg [CBD] pending compliance with [that order]’. The
Municipality was ordered to pay the costs of
the application. The
high court granted leave to: (a) the Municipality to appeal against
those orders; and (b) Mwenzi to cross-appeal
its conclusion that it
was not entitled to compensation in terms of s 67 of the 1939
Ordinance.
As to the
first issue
[8] A useful
starting point is sections 66 to 68 of the 1939 Ordinance. They
provide:
‘
66.
Closing of certain public places.
(1)
Notwithstanding anything to the contrary contained in this Ordinance,
a council may, after having given such notice as it may
deem
necessary -
.
. .
(b)
close any street, road or thoroughfare vested in the council -
(i)
permanently or temporarily for any particular class of traffic,
procession or gathering; or
(ii)
temporarily for all traffic; or
.
. .
67.
Permanent closing or diversion of street.
Notwithstanding
anything to the contrary in this Ordinance contained the council may
permanently close or divert any street or portion
of a street if and
when the following conditions have been compiled with:
.
. .
(4)(a)
Any person who considers that his interests will be adversely
affected by the proposed closing or diversion may at any time
before
the time for the lodging of objections and claims has expired, lodge
with the council a claim, in writing, for any loss
or damage which
will be sustained by him if the proposed closing or diversion is
carried out. If such closing or diversion is carried
out the council
shall pay compensation for the damage or loss sustained by such
person, the amount of compensation in default of
mutual agreement to
be determined by arbitration. In assessing the amount of compensation
the benefit or advantage derived or to
be derived by the claimant by
reason of the closing or diversion shall be taken into account. If
such person however, fails to
lodge his claim with the council during
the period during which objections and claims may in terms of
paragraph (3) of this section
be lodged he shall not be entitled to
any compensation for any damage or loss sustained by him.
(b)
If the council finds that the payment of compensation will be too
costly, it may resolve not to proceed with the proposed closing
or
diversion.
.
. .
68.
Permanent closing of squares, open spaces, gardens, parks or other
enclosed spaces.
Notwithstanding
anything to the contrary contained in this Ordinance, the Council may
close permanently, either in whole or in part,
any square, open
space, garden, park or other enclosed space, vested in the council
under section 63: Provided that the provisions
of section 67 shall
mutantis mutandis
apply to the council in the exercise of the power hereby conferred.’
[9]
Section 66(1)
(b)
(i)
of the 1939 Ordinance empowers a local authority after having given
such notice as may be necessary to 'permanently or temporarily'
close
any street for any ‘particular class of traffic’, whilst
s 67 empowers it to ‘permanently close or divert’
any
street
(or portion of a street) when
certain conditions set out in the succeeding subsections are complied
with.
The Municipality admits that it did
not comply with the conditions prescribed by s 67 because, so it
contends, it did not effect
a permanent closure or diversion.
Accordingly, so the contention goes, considerations of compensation
do not even arise and Mwenzi
is not entitled to compensation in terms
of s 67(4). Unlike s 66, s 67 requires inter alia: (a) a proposal for
the closing or diversion
of a street to be dealt with at a meeting of
the relevant local authority (subsec (1)); (b) a plan showing the
proposed closure
or diversion (subsec (2)); and (c) publication of
the plan (in the Provincial Gazette, one English and one Afrikaans
language newspapers
and by the posting of notices in a conspicuous
manner at or near the street proposed to be closed and the service of
notices on
the owners of all properties abutting the street proposed
to be closed) and the inviting of objections, if any (subsec (3)).
Section
67 further prescribes the necessary procedures for dealing
with objections and claims for compensation. Section 66 on the other
hand requires a local authority to do no more than give such notice
as it may deem necessary. Significantly, the
fairly
onerous notice, public participation and compensation provisions set
out in s 67
find application in one further
instance, namely, the permanent closure of ‘squares,
open
spaces, gardens, parks or other enclosed spaces’ in terms of s
68. Thus where the legislature intended that a local authority
comply
with those requirements it expressly said so.
[10]
‘Street’, according to the
1939
Ordinance, includes ‘any street, road or thoroughfare shown on
the general plan of a township . . . or in respect of
which the
public has acquired a prescriptive or other right of way’. The
Ordinance
contains no definition of the
words 'close' or ‘divert’ and s 67 does not appear to
limit them in any way. According
to the Concise OED the verbs ‘close’
and ‘divert’, inter alia, mean: ‘cease to be open
to the public
or in operation’; and ‘cause to change
course or take a different route’. Self-evidently the words '
permanently
close or divert' in s 67 of the 1939 Ordinance qualifies
the words 'any street or portion of a street' which follow
immediately
thereafter. The verb 'close' qualified as it is by the
word ‘permanently’ must thus in the context of s 67 mean
'permanently
close to all traffic'. It thus seems plain that in
enacting sections 66 and 67 the legislature intended to cater for two
distinctly
different scenarios. Accordingly,
different
provisions apply to the closing of any street permanently for any
particular class of traffic, procession or gathering
(s 66) and the
closing of any street or a portion of a street permanently for all
classes of traffic (s 67). (See
SJ and
MM Hilcove (Pty) Ltd T/A Kentucky Fried Chicken & another v
Pietermaritzburg City Council
1988 (3)
SA 319
(A) at 328I-J.)
[11] It
is accordingly necessary to enquire whether the RRT project will
result in the
closing of any street
permanently for all classes of traffic
as
contemplated by s 67.
The plan for the
establishment of the RRT in the CBD of Rustenburg involves the
reserving or dedication of two out of three lanes
in each direction
on President Mbeki Drive and two out of four lanes in each of Nelson
Mandela and Oliver Tambo Drives to RRT buses.
The remaining lanes of
each of these roads will remain open to mixed traffic. Mixed traffic
will not be able to utilise the dedicated
bus lanes. The dedicated
bus lanes in President Mbeki Drive will be separated from the mixed
traffic lanes by being raised in order
to assist with the embarkation
and disembarkation of passengers at the CBS. Elsewhere, the dedicated
bus lanes are on the same
level as the mixed traffic lanes, but the
one is separated from the other by lane delineators. At
intersections, however, there
is no separation because the
delineators stop before and do not run into intersections. In
addition, in respect of the intersection
between Nelson Mandela and
President Mbeki Drives (in front of Mwenzi`s service station) and the
intersection of Oliver Tambo and
President Mbeki Drives, the design
is such that the whole of those intersections are raised, including
the mixed traffic lanes.
This is because the raised intersections are
preceded in the throughways by five metre long gradual gradients
specifically designed
to facilitate ease of traffic flow and also to
accommodate mobility impaired persons and vehicles. The intersections
of Nelson
Mandela and President Mbeki Drives, on the one hand, and
Oliver Tambo and President Mbeki Drives on the other, will in
addition
be controlled by phased traffic lights to ensure safe and
smooth flow of traffic and the crossing of dedicated bus lanes by
ordinary
traffic. Mwenzi’s service station presently has four
access points – two in each of Nelson Mandela and President
Mbeki
Drives. It is not in dispute that the RRT will not affect any
of those access points.
[12]
On
its plain meaning the words 'permanently close or divert any street
or portion of a street' can hardly find application in circumstances
where all that is hoped to be achieved is the simple alteration of
traffic flows on a street
.
Nor,
in my view, does it apply to a situation such as this, where the
establishment of dedicated bus lanes will result in the reserving
of
no more than just
a
portion (not the whole) of those streets for the exclusive use of
buses, notwithstanding
how adversely that
may affect a particular party such as Mwenzi in this case
.
As other vehicular traffic will continue to have unrestricted access
to the remaining portions of those streets,
the
reserving of dedicated bus lanes for the exclusive use of buses, will
not amount to a
closing of streets (or even
a portion of those streets) permanently to all classes of traffic
as contemplated by s 67. On the contrary that is
the very situation contemplated by s 66(1) (b)(i), namely the
permanent closure
of a part of a street for a particular class of
traffic.
It must thus follow that s 67 of
the Ordinance does not find application.
As to the
second issue:
[13] The
principal tool for regulating land use is through the introduction
and enforcement by a municipality of a town planning
scheme
(
Johannesburg Municipality v Gauteng Development Tribunal &
others
[zRPz]2010 (2) SA 554 (SCA). In terms of the 1986
Ordinance the general purpose of a town planning scheme is the
co-ordinated and
harmonious development of the area to which it
relates as will most effectively, inter alia, promote the safety,
good order and
general welfare of such area (s 19). The Ordinance
contemplates detailed control and regulation of land use being
exercised by
a municipality. The Scheme regulates land use in
Rustenburg. It does so by means of zoning, which is essentially the
‘allocation
of different uses to different areas (Van Wyk
‘Planning Law; Principles and Procedures of Land-Use Management
at 39). As
it was put by Human J in
Pick `n Pay Stores Ltd &
others v Teazers Comedy & Revue CC & others
2000 (3) SA
645
(W) at 656H:
‘
Zoning
is an aspect of town planning which is primarily concerned with
certain restrictions or limitations on ownership and use
of land. For
this reason zoning is a limitation or condition restricting the
exercise of ownership.’
And at 656G:
‘
Such
purpose would be frustrated if a use were allowed for which no
provision is made in the town planning scheme or if a person
uses
land contrary to the purpose for which it is zoned.’
[14] The
Scheme imposes restrictions on the use of land. Section 2.1 provides
that ‘no land or building may be used for any
purpose other
than that permitted in this Scheme’. And s 3.3 prohibits the
use, without consent, of ‘any land, building
or part thereof
for a purpose other than the purpose for which it was zoned’.
President Mbeki Drive is zoned ‘existing
public road’. A
street or road is defined in the Scheme as:
‘
the
area or part of any street, road, bridge, subway, avenue, lane,
sanitary lane, thoroughfare or right-of-way, as shown on the
general
plan of a township or agricultural holdings or division of land in
respect of which the public has acquired a prescription
or other
right-of-way.’
There
are nine defined land uses permitted by the Scheme under the zoning
existing public roads, namely, cultural heritage site,
electrical
purposes, municipal purposes, proposed roads, protected areas,
railway purposes, street or road, taxi rank and telecommunication.
The Municipality contends that the planned CBS falls within the scope
of two such uses, namely taxi rank and municipal purposes.
Each of
those will be considered in turn.
[15] In
the Scheme, the land use ‘taxi rank’ is defined as ‘a
place at which mini busses (taxis) and busses are
allowed to wait
and/or stop for passengers boarding or alighting’.
The
Scheme makes provision as well for: (a) a taxi holding area, which is
defined as ‘an area, usually off-street, where mini
buses
(taxis) hold before proceeding to loading points and where generally
there is no passenger activity. A holding area can either
be included
within or separate from a Taxi rank; and (b) a taxi parking area,
which is defined as ‘a demarcated part of a
parking lot which
may be used by minibuses (taxis) aiming to provide a public transport
service.’
None of those related land
uses contemplate the erection or use of buildings unlike for example
uses such as ‘electrical purposes’,
‘railway
purposes’ and ‘telecommunications’ - each of which
are defined to mean ‘the use of land
or a building designed or
used for [that particular purpose]’.
[16] The
Municipality contends that plans to build the CBS are incidental to
or legitimately part of the expressly sanctioned use.
In
Coin
Operated Systems v Pty Ltd & another Johannesburg City Council
1973 (3) 856 (W) at 860E Margo J stated:
‘
The
test of whether the use claimed by the applicants is lawful or
unlawful is therefore not simply whether the premises are being
used
for business activities. The test is whether the use in question is
legitimately part of, or incidental to, one or other of
the uses or
activities included in the definition of “residential
building”.
(See
also
Clarensville (Pty) Ltd v Cape town
Municipality
1974 (4) 974 (C) at 978G)
The
Scheme, however, expressly states when a particular use is to be
regarded as incidental to or legitimately part of the main
use as
defined. Thus for example: (a) ‘agriculture’ is defined
as ‘land that is used or intended to be used for
buildings and
land uses associated with farming practices . . .’; (b)
builders yard includes ‘administrative offices
incidental to
[the mentioned uses]; (c) ‘commercial use’ includes
‘offices that are subordinate and complementary
to the
commercial use of the land’; (d) ‘dwelling unit’
includes ‘such outbuildings and servants quarters
as are
ordinarily incidental therewith; and (e) ‘funeral parlour’
includes ‘such other buildings designed for
use in connection
therewith and is normally ancillary to or reasonably necessary for
the business of a funeral undertaker’.
It must follow from this
that an express permission could easily have been provided for had
that been intended. Moreover, the multi
portal CBS encountered could
hardly be described as being incidental to or legitimately part of
the main use of a taxi rank as
defined. In addition, the Scheme
caters elsewhere for the transportation of passengers. That it does
under ‘transport uses’,
which means:
‘
the
use of
land
and / or
buildings
for the operation of a business consisting of the transportation of
goods and/ or passengers by rail, air, road and pipelines and
includes uses such as stations, transportation amenities and
facilities, parking, administrative offices and ancillary uses such
as warehouse, container parks, workshops as well as residential uses
such as amenities for personnel, and may further include any
uses
such as
shops
or
offices
which are of service and convenience to passengers, as approved by
the
Local Authority
.’
[17]
‘Municipal purposes’ is defined in the Scheme to mean
‘such use of land for which the Local Authority is
authorised
in terms of any law or ordinance and which the Local Authority may
approve from time to time’. On a proper interpretation
of this
definition the actual use of the land by the Municipality must be
authorised in terms of any law or ordinance. It can therefore
hardly
be said to assist the Municipality. Here too, the definition does not
encompass buildings. By contrast government purposes
does. The Scheme
defines government purposes as: ‘
land
used or
buildings
designed or used for government or
municipal
purposes
which may include communal
facilities provided by the Government or the
Local
Authority
.’
[18] It
must follow that the planned construction of the CBS on President
Mbeki is not authorised or permitted by the Scheme under
its present
zoning - ‘existing public road’. Accordingly, a rezoning
thereof would be required in terms of s 56 of
the 1986 Ordinance.
Whether that would entitle those who may be adversely affected by
such rezoning to compensation in terms of
s 44 of that Ordinance need
not here detain us.
[19]
Paragraph (c) of the high court order
interdicted
the Municipality from implementing and establishing the CBS in the
Rustenburg CBD pending compliance with the 1986 Ordinance
read with
the Scheme. Since Mwenzi failed to establish that it would suffer any
harm (much less irreparable harm) in consequence
of such failure on
the part of the Municipality, there
was no
warrant for the interdict that issued. The setting aside of the
interdict does not improve the position of the Municipality
–
it remains bound by the principle of legality to comply with the
Ordinance and the Scheme. Nor would its discharge have
any impact on
the costs of the appeal. It follows that that order falls to be set
aside. For the rest, the judgment of the high
court must stand.
[20] In the
result save for paragraph (c) of the order of the court below, which
is dismissed, the appeal and the cross appeal
fail, with costs in
each instance to follow the result.
_________________
V
PONNAN
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: M C Maritz SC (with A J D`Oliveira)
Instructed
by:
Kgomo
Mokhetle & Tlou Attorneys
Mahikeng
c/o
McIntyre & Van der Post Attorneys
Bloemfontein
For
Respondent: M M Oosthuizen SC
Instructed
by:
Smit
Stanton Inc
Mahikeng
c/o
Zietsman-Horn Attorneys
Rustenburg
c/o
Symington & De Kok Attorneys
Bloemfontein