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[2010] ZAWCHC 204
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Liebenberg v Frater NO and Others, Drakenstein Municipality v Frater NO and Others (6214/2010, 19763/2010) [2010] ZAWCHC 204 (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
ORDER HANDED DOWN ON : 23 SEPTEMBER 2010
MOOSA, J:
Having read the papers filed of record and having heard counsel,
it
is ordered as follows
:
The forms and the periods prescribed by the Uniform Rules of Court
are dispensed with to the extent necessary and the applications
are
heard as matters of urgency in accordance with Rule 6(12).
In terms of Rule 10 of the Uniform Rules of Court, the application
brought by the Drakenstein Municipality under case No 19763/2010,
is
consolidated with the application brought by Diana Liebenberg under
case No 6214/2010. For the purpose of convenience the
parties are
cited as in the application of Diana Liebenberg (case No 6214/2010).
A Rule Nisi is hereby issued, calling upon the first to fourth
respondents (“the Trust”) to show cause, if any, on
8
December 2010, why an order should not be granted in the following
terms:
3.1 the Trust is interdicted and restrained from
causing or permitting any further building or construction work to be
undertaken
on Erf 2681, Paarl (“Erf 2681”), until such
time as it has obtained approval of building plans reflecting the
construction
in fact undertaken or intended to be undertaken on Erf
2681,
alternatively
provisional authorisation under s 7(6) of Act 103
of 1977 in respect thereof ;
3.2 the Trust is interdicted and restrained from causing or
permitting the operation of the Primi Piatti restaurant or any other
restaurant on the remainder of Erf 2681, Paarl until such time as all
of the following have been granted:
3.2.1 approval of building plans reflecting the construction in fact
undertaken or intended to be undertaken on Erf 6281,
alternatively
provisional authorisation under s 7(6) of Act 103 of 1977 in respect
thereof;
3.2.2 an occupancy certificate,
alternatively
written
permission to use the building under s 14(1A) of Act 103 of 1977;
3.2.3 appropriate trading licences.
3.3 The Trust is interdicted and restrained from:
3.3.1 occupying or permitting occupation of that part of the building
from which the restaurant on Erf 2681 is being operated;
3.3.2 occupying or permitting occupation of any other part of the
buildings on Erf 2681 until such time as an occupancy certificate,
alternatively
written permission to use the building under s
14(1A) of Act 103 of 1977, has been granted.
3.4 ordering the Trust to pay the costs of applicant and that of
fifth respondent, which cost shall include the costs of two counsel,
where applicable, jointly and severally, the one paying the other to
be absolved.
Paragraphs 3.1 and 3.3.2 of the Order shall operate as an interim
interdict with immediate effect pending the return day.
Service of this Order shall be effected on Windfall 32 Restaurant
(Pty) Ltd in the person of Elizabeth Frater and on the
representative
of the employees and/or the trade union and a copy
thereof shall be displayed prominently on a notice board of the
restaurant
and/or in the staff room.
Filing of additional affidavits and heads of argument shall be done
in accordance with the Uniform Rules of Court.
All issues of costs stand over for determination on the return date.
BY ORDER OF THE COURT
REGISTRAR