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[2010] ZAWCHC 203
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Liebenberg v Frater NO and Others, Drakenstein Municipality v Frater NO and Others (6214/2010, 19763/2010) [2010] ZAWCHC 203 (23 September 2010)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
No: 6214/2010
In the matter between:
DIANA LIEBENBERG
…..........................................................................
Applicant
and
GERARD FRATER N O
…......................................................................
First
Respondent
YVETTE FRATER N O
…........................................................................
Second
Respondent
JACOBUS PETRUS ROSSOUW N O
…....................................................
Third
Respondent
THE GERARD FRATER FAMILY TRUST
…............................................
Fourth
Respondent
DRAKENSTEIN MUNICIPALITY
….............................................................
Fifth
Respondent
AND
CASE No: 19763/2010
DRAKENSTEIN MUNICIPALITY
…...........................................................................
Applicant
and
GERARD FRATER N O
…...........................................................................
First
Respondent
YVETTE FRATER N O
…........................................................................
Second
Respondent
JACOBUS PETRUS ROSSOUW N O
…....................................................
Third
Respondent
REASONS HANDED DOWN ON : 23 SEPTEMBER 2010
MOOSA, J:
I have two urgent applications before me for an interdict. Both
applications revolve substantially around the same issues. For
the
sake of convenience, I shall refer to the first application as the
Liebenberg application and the second application as the
Drakenstein
application. In the Liebenberg application, the applicant sought a
final interdict whereas in the Drakenstein application,
the
applicant sought an interim interdict.
In the Liebenberg application, the applicant sought the following
final relief:
(a) that the fourth respondent be prohibited from carrying out any
building operations on its property without approved building
plans;
and
(b) that the fourth respondent be ordered to demolish all building
work or buildings erected on its property in respect of which
there
is no approved building plans.
At the hearing of the applications, counsel for Liebenberg, and in my
view correctly so, abandoned the relief sought in prayer
(b) for the
demolition of the unauthorised structure.
In the Drakenstein application, the applicant sought the following
interim relief:
(a) that first to third respondents (“the Trust”) be
prohibited from performing any building or construction work on
Erf
2681, Paarl, until such time as the requisite permission is obtained;
and
(b) that the Trust be prohibited from causing or permitting a
restaurant to be conducted on Erf 2681, Paarl until such time as
they
may lawfully use the premises for such purpose.
Mr
Duminy
SC for Drakenstein submitted that as the issues in
the two applications are substantially the same, that I exercise my
discretion
to consolidate the two matters. There was no opposition
from counsel for the other parties. I accordingly exercise my
discretion,
in terms of rule 10 of the Uniform Rules of Court, and
consolidate the Drakenstein application with that of the Liebenberg
application.
I do so for the following reasons:
4.1 Many of the facts and the application of the law are common to
both applications;
4.2 One of the grounds of relief sought namely, the interdicting and
restraining of the ongoing building operation is common to
both
applications;
4.3. The unlawful use of the property is raised in both applications;
4.4 The consolidation of the two applications will avoid multiplicity
of proceedings and attendant costs and will be convenient
not only
for the parties, but also for the court.
For the sake of convenience, the parties will henceforth be referred
to as they are cited in the Liebenberg application, but when
first to
third respondents are referred to jointly, they will be cited as the
“Trust”.
It is common cause that:
(i) the Trust’s building plans submitted to the Municipality
for approval in terms of the National Building Regulations and
Building Standards Act 103 of 1977 (“the National Building
Act”) have not been approved as required by section 4(1)
of the
National Building Act;
(ii) the Trust’s application pursuant to section 42 of the Land
Use Planning Ordinance 15 of 1985 (“the LUPO”)
for the
amendment of the applicable zoning conditions was only approved on 1
September 2010 and is subject to appeal and the use
of that part of
the building which is an extension to the old building for the
operation of a restaurant was rendered unlawful
by section 39(2)(b)
of LUPO at least prior to 1 September 2010;
(iii) theTrust caused or permitted the occupation of the building
from which the restaurant is operating without obtaining a
certificate
of occupancy in terms of section 14(1)(a) of the National
Building Act, which constitutes criminal conduct in terms of section
14(4) of the said Act;
(iv) the Trust caused or permitted the conduct of the restaurant
business without an appropriate trading licence being issued in
pursuance to section 2(3)(a) read with item 1 of Schedule 1 of the
Business Act 71 of 1991 (“the Business Act”), which
deals
with the sale or supply of meals or perishable foodstuffs and which
constitutes criminal conduct pursuant to section 5 of
the said Act;
(v) the Trust caused or permitted the conduct of the restaurant
business in contravention of the Regulations governing General
Hygiene Requirements for Food Premises and the Transport of (GN R918
of GN 20318, 30 July 1999 as amended) promulgated in terms
of the
Health Act, 63 0f 1977 (Health Regulations), which constitutes
criminal conduct pursuant to section 16 of the Health Regulations;
and
(vi) the Trust caused or permitted the sale of liquor without a valid
liquor licence as required by section 20 of the Liquor Act,
27 of
1989 (the “Liquor Act”), which constitutes criminal
conduct in terms of section 154(1) of the Liquor Act.
The Trust raised various defences: firstly, it alleged that the
matter is not urgent; secondly, it alleged that the applicant
has no
locus standi;
thirdly, it alleged that applicant has not come
to court with clean hands in that she, in the past, has erected a
carport without
approved buildings plans and in contravention of the
building line restrictions; fourthly, it is denied that the patrons
of the
additional restaurant will make such noise that her guests
will cease to patronise her guesthouse; fifthly, the fifth
respondent
inordinately delayed the launch of the Drakenstein
application, allowing the building works to be almost completed in
respect
of the new restaurant and the rest of the building and
sixthly, to allow the restaurant to appoint staff, commence business
and
start building up clientele.
The overwhelming and undisputed evidence is that the Trust with
impunity and in scant disregard for the rule of law carried on
its
unlawful building operations. It started building operations towards
the latter part of 2009 without approved building plans.
The
applicant repeatedly complained to the fifth respondent about the
unauthorised building operation. The fifth respondent asked
the
Trust to desist from such conduct. Despite giving undertakings to
fifth respondent that it will cease building operations,
it reneged
on such undertakings and continued the building operations. At the
time the applicant launched her application, the
unauthorised
structure was roof height and the renovations to the loft of the
existing building had been completed.
I am of the view that the applicant took reasonable steps to get
fifth respondent, that was the responsible authority to administer
the particular statute in question, to take the necessary action. It
was only when fifth respondent failed to get any meaningful
response
from the Trust that applicant launched the application. In my view,
the delay in bringing this application by the applicant
was
occasioned by the parties concerned trying to get the Trust to
voluntarily agree to cease the unlawful building operations,
but
when they did not succeed, the applicant brought the urgent
application, which was subsequently followed by the application
of
the fifth respondent. The unlawful conduct on the part of the Trust
constitutes a continuing infringement of applicant’s
rights.
The delay in bringing the application, in my view, does not detract
from the urgency of the matter and in the circumstances
I condone
the non-compliance with the rules in both the Liebenberg and the
Drakenstein applications.
The defence that the applicant lacks
locus standi
applies to
the relief sought by the applicant for an interdict restraining the
Trust from performing building operations without
approved building
plans and an order for the demolition of the unauthorised structure.
For the applicant to have
locus standi
in respect of the
interdictory relief, the applicant must not only be able to show
that she has a direct interest in the matter,
but must also be able
to vindicate a right which she possesses in her own right and not
merely that which all citizens possess
(
Roodepoort-Maraisburg
Town Council v Eastern Properties
(Pty) Ltd
1933 AD 87
at
101 and
Glass v Glass
1980 (3) SA 263
(W) at266H).
The Trust alleged that the applicant herself has not come to court
with clean hands as she herself has contravened the Building
Regulations. Two wrongs do not make a right. The wrong committed by
the applicant is minor in relation to the wrong committed
by the
Trust. It also appears that the Trust acquiesced in the wrong
committed by the applicant and only raised the objection
against the
unauthorised conduct of the applicant because she brought the
application for an interdict against the Trust. In
any case, she has
indicated that she is in the process of rectifying her unlawful
conduct. However, in the present applications,
I am not called upon
to adjudicate on her unlawful conduct. The “clean hands”
doctrine which is of English origin,
is very much similar to the
Roman-Dutch law maxim “
in pari delicto potior est condition
possidentis vel defendentis”
(
Klokow v Sullivan
2006
(1) SA 259
(SCA) at 265G).
The
pari delicto
rule has been set out in
Afrisure CC and
Another v Watson NO and Another
[2008] ZASCA 89
;
2009 (2) SA 127
(SCA) at para
[39]
by
Brand JA
as follows:
“
The principle underlying the par
delictum rule is that, because the law discourages illegality, it
would be contrary to public policy
to render assistance to those who
defy the law. Prior to the judgment in
Jajbhay
v Cassim
1939 AD 537
, the pari
delictum rule found strict and consistent application in our courts
(see eg
Brandt v Bergstedt
1917 CPD 344).
But in
Jajbhay
this court – while affirming the considerations of public
policy underlying the rule - decided that it should be relaxed,
as
Stratford CJ
put it (at 544), in those instances where ‘public policy should
properly be taken into account the doing of simple justice
man and
man’.”
In the light of all the circumstances and the extent of the unlawful
conduct of the Trust as set out above, I do not think that,
on the
facts of this case, that she should be barred from protecting her
interest, despite the fact that she might not be regarded
as coming
to court “with clean hands”. In any case the relief
sought by her is subsumed by the relief sought in the
Drakenstein
application. I am satisfied that the applicant has the
locus
standi
to bring the Liebenberg application.
Applicant’s property abuts that on which the Trust has erected
the unauthorised structure. She is conducting a guesthouse
from such
property and has complained that the additional restaurant on the
neighbouring property will attract such noise that
the applicant’s
guests will cease to patronise her guesthouse. These fears are
premature. Once permission is granted to
the Trust to erect an
additional restaurant consistent with the zoning regulations on the
site and the building plans comply
with the legal requirements, it
will be hard-pressed for the applicant to oppose the erection of a
second restaurant. Once the
restaurant is erected and operative and
should the noise level in future exceed the permissible level, the
remedy of the applicant
would be to complaint to the Municipality of
the impermissible noise level or seek an interdict if she can show
that the breach
has caused her harm or is likely to do so (
Lakey
and Another v Showzone CC and Others
2007 (2) SA 48
(C) at para
[18]).
The Trust blames the fifth respondent for the inordinate delay in
taking action against it. It submitted that it was because
of such
delay that the building work in respect of the restaurant and the
rest of the building was completed. Such default also
allowed the
restaurant to appoint staff, commence business and build up a
clientele. In my view, the Trust is trying to pass
the buck for its
own unlawful conduct. The evidence is that fifth respondent
repeatedly requested the Trust to stop its illegal
building
operation, but it carried on regardless, well knowing that it is a
flagrant violation of the law and despite giving
undertakings that
it will cease to do so. The blame for almost completing the
unauthorised structure and for causing or permitting
the
commencement of the restaurant business must, in my view, be laid
squarely at the door of the Trust.
Before dealing with the question of whether the applicant and fifth
respondent have made out a case for an interdict, I have
to mention
that it is settled law that conduct which is tantamount to criminal
conduct cannot be condoned by our courts. As the
enforcer of the law
it is against the conviction of the community and public policy. The
vexed question arises: can an interdict
conditionally be suspended?
There are conflicting decisions in this and other jurisdictions. In
the case of
Bitou Local Municipality v Timber Two Processors
2009(5) SA 618
Fourie J
,
found that the court
in the case of a final interdict has no discretion to suspend the
order whereas in the case of
410 Voortrekker Road Property
Holdings CC v Minister of Homes and Others,
Case No 26841/09,
Binns-Ward J
disagreed with
Fourie J
and found that in
the case of a final interdict, the court has a discretion to suspend
a final order. What the position is in
the case of an interim
interdict is an open question.
It is generally accepted by our courts that they have a
discretionary power to suspend the operation of a final order in
exceptional
circumstances where it would be just and equitable to do
so or to prevent an injustice. In this matter certain innocent
employees
of the restaurant would be adversely affected. The
evidence is that there are presently 44 persons employed by the
restaurant
of which about 41 are family breadwinners. They are not a
party to these proceedings nor is the Company which employs them.
They
need to be given an opportunity firstly, to approach the court
and make representation as to why the order should not be made final
and /or secondly, find alternative employment. I am of the view that
the interest of the employees constitute exceptional circumstances
and that it will be just and equitable that I do grant the interim
relief pending the return day in respect of clauses 3.1 and
3.3.2,
but not in respect of clauses 3.2 and 3.3.1.
Grosskopf JA
in
Knox D’Arcy Ltd and Others v
Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 362B-C said that the
court possesses a general and overriding discretion whether or not
to grant an application for interim
relief and went on to say:
“
The courts have not defined the
considerations which may be taken into account in exercising the
so-called discretion, save for
mentioning the obvious examples such
as the strength or weakness of the applicant’s right, the
balance of convenience , the
nature of the prejudice which may be
suffered by the applicant and the availability of other remedies”.
I am satisfied that the fifth respondent, by virtue of the fact that
it administers the zoning schemes in its area in terms of
section
39(1) of LUPO and the National Building Regulations, and as such has
a
prima facie
right to enforce them against the Trust. The
applicant has a
prima facie
right as the owner of a
neighbouring property to enforce compliance therewith through the
fifth respondent. I am satisfied further
that the balance of
convenience, on the facts of this case, favours the granting of the
interim relief sought. I am of the view
that the applicant and fifth
respondent do not have any other satisfactory remedy. In the
circumstances the attached order was
made.