About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 612
|
|
Liebenberg v Frater NO and Others (6214/2010, 19763/2010) [2010] ZAWCHC 612 (9 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NOS:
6214/2010
& 19763/2010
Before
the Honourable Ms Acting Justice Cloete
On
Thursday, 09 December 2010
In
the matter between
DIANA
LIEBENBERG
….............................................................................................................
Applicant
And
GERARD
FRATER N.O.
….............................................................................................
1
st
Respondent
YVETTE
FRATER N.O.
…..............................................................................................
2
nd
Respondent
JACOBUS
PETRUS ROSSOUW N.O.
….......................................................................
3
rd
Respondent
THE
GERARD FRATER FAMILY TRUST
…..................................................................
4
th
Respondent
DRAKENSTEIN
MUNICIPALITY
…................................................................................
5
th
Respondent
ORDER
Having
considered the papers and having heard Counsel, it is ordered as
follows:
The
rule
nisi
issued
on 23 September 2010 is made final and an order is issued in the
following terms:
1.
The First, Second, Third and Fourth Respondents ("the Trust")
are interdicted and restrained from causing or permitting
any
further building or construction work to be undertaken on the
remainder of Erf 2681, Paarl ("Erf 2681"), until
such time
as they have 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 the
National Building Regulations and Building Standards
Act, 103 of
1977 ("the Act") in respect thereof.
2.
The Trust is interdicted and restrained from causing or permitting
the operation of the Primi Piatti restaurant or any other
restaurant
which is not part of a country shop on the remainder of Erf 2681
until such time as all of the following have been
granted:
2.1.
final approval of the amendment of conditions of re-zoning
applicable to the remainder of Erf 2681 permitting the operation
of
such a restaurant;
2.2.
approval of building plans reflecting the construction in fact
undertaken or intended to be undertaken on the remainder of
Erf
2681, alternatively, provisional authorisation under s 7(6) of the
Act in respect thereof;
2.3.
an occupancy certificate, alternatively, written permission to use
the building under s 14(1 A) of the Act; and
2.4.
appropriate trading licences.
3.
The Trust shall pay the costs of applicant and fifth respondent,
which costs shall include the costs of two counsel, where
applicable, and the applicant's costs in respect of the postponement
on 13 April 2010, save that the Trust shall not be obliged
to pay
any wasted costs incurred by applicant and fifth respondent as a
result of the matter having to stand down on 14 September
2010, in
respect of which fifth respondent shall bear applicant's costs and
fifth respondent and the Trust shall each bear their
own costs.
ORDER
OF COURT
COURT
REGISTRAR
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO:
6214/2010
& 19763/2010
In
the matter between:
DIANA
LIEBENBERG
…...........................................................................................................
Applicant
And
GERARD
FRATER N.O.
…...............................................................................................
1
st
Respondent
YVETTE
FRATER N.O.
…................................................................................................
2
nd
Respondent
JACOBUS
PETRUS ROSSOUW N.O.
…........................................................................
3
rd
Respondent
THE
GERARD FRATER FAMILY TRUST
…...................................................................
4
th
Respondent
DRAKENSTEIN
MUNICIPALITY
…..................................................................................
5
th
Respondent
REASONS
HANDED DOWN ON 9 DECEMBER 2010
Jl
CLOETE, AJ
[1]
This is the return day of a
rule
nisi
issued
by Moosa J on 23 September 2010. For sake of convenience, I shall
refer to the initial applicant as "Liebenberg",
the first
to fourth respondents as "the Trust" and to fifth
respondent in the application under case no: 6214/2010
as "the
Municipality".
[2]
Save as set out below, I am in agreement with the findings of fact
and conclusions of law of Moosa J in the reasons handed
down by him
on 23 September 2010. I accordingly do not consider it necessary to
repeat them here, save to highlight the following,
namely that:
[2.1.]
the learned judge granted the
rule
nisi
in
part in that he did not interdict the operation of the restaurant on
the Trust's property since he was of the opinion that
'certain
innocent employees of the restaurant would be adversely affected".
He
thus directed at paragraph 5 of his order that a copy of the
rule
nisi
be
served on the owner of the restaurant business, Windfall 32
Restaurant (Pty) Ltd, on the representative of the employees and/or
trade union and that a copy of the
rule
nisi
be
displayed prominently on a notice board of the restaurant and/or
staff room. Service in accordance with paragraph 5 of the
Order was
effected on 27 September 2010;
[2.2.]
the learned judge was of the view that Liebenberg's fears that an
additional restaurant on the Trust's property would attract
such
noise that her guests would cease to patronize her guesthouse, were
premature. He stated that
'Once
permission is granted to the Trust to erect an additional restaurant
... should the noise level in future exceed the permissible
level,
the remedy of the applicant would be to complain to the municipality
of the impermissible noise level or seek an interdict
if she can
show that the breach has caused her harm oris likely to do so'.
[3]
To my mind, Liebenberg's supplementary replying affidavit deposed to
on 15 September 2010 makes it clear that such fears were
not
premature. I must assume for present purposes that this affidavit
was indeed before the court when the interim interdict
relief sought
by the municipality was argued. It would appear that Moosa J's
concern about the fate of the restaurant's employees
overrode the
consideration of the issue of noise nuisance (which was in any event
not the main reason for Liebenberg's application),
but that the
learned judge was indeed mindful of Liebenberg's position when
making the order in the form which he did, particularly
at
paragraphs 3.2 and 3.3.1.
THE
POSITION OF THE EMPLOYEES
[4]
It is common cause that, notwithstanding service of the Order in
accordance with paragraph 5 thereof, the employees did not
make any
formal application to intervene in the proceedings prior to the
return date.
[5]
Mr Schreuder appeared on behalf of the employees on the return date.
He informed the court that he had only been appointed
by the
employees a few days earlier and that he had not had an opportunity
to take any formal procedural steps on their behalf.
He did not
however seek a postponement of the return day in order to take such
procedural steps. Instead, he requested an opportunity
to place
'certain
information'
before
the court.
[6]
However, as correctly pointed out by both counsel for the
Municipality and Liebenberg, it would be wholly irregular for Mr
Schreuder to be afforded the opportunity to effectively adduce
evidence from the Bar, and accordingly, this request was refused
by
me. I did however feel it important, in light of the Order and
Reasons of Moosa J, to afford Mr Schreuder an opportunity to
place
argument before the court as to why the final relief sought by the
Municipality and Liebenberg should not be granted.
[7]
The high water mark of Mr Schreuder's argument was to the effect
that the grant of a final order would be unfair to the employees,
many of whom are breadwinners and who have dependants. However he
was not able to refer the court to any of the provisions of
the
Constitution of the Republic of South Africa, Act No 108 of 1996
('the Constitution") in support of the contention that
in the
present circumstances, this consideration should override the final
relief sought by the Municipality and Liebenberg,
nor indeed could
he refer the court to any other authorities.
[8]
Mr Schreuder conceded that it is in fact the unlawful conduct of the
Trust which has placed the employees in the invidious
position in
which they find themselves and that such remedies as they may have
lie, not against the Municipality and Liebenberg
, but against the
Trust and/or the lessee of the restaurant premises, Windfall 32
Restaurant (Pty) Ltd.
[9]
Mr Kruger on behalf of the Trust relied on certain principles set
out in
410
Voortrekker Road Property Holdings CC v Minister of Home Affairs &
Others,
case
no 26841/09, an as yet unreported judgment in this division of
Binns-Ward J in support of his contention that the rights
of the
affected employees should play a material role in this court
exercising its discretion in favour of suspending the operation
of a
final interdict against the Trust permitting the unlawful operation
of the restaurant on its premises.
[10]
Mr Duminy SC on behalf of the Municipality and Mr Coetzee on behalf
of Liebenberg argued that
410
Voortrekker Road Property Holdings CC
supra
is distinguishable from the facts of the present matter, and that
this Court should rather follow the principles set out
by Fourie J
in
Bitou
Local Municipality v Timber Two Processors CC & Another
2009
(5) SA 618
(C) at 625G-626A, in which the facts, Mr Duminy
submitted, were similar in character to those in the instant matter.
[11]
I agree with the submissions of Mr Duminy and Mr Coetzee. Mr Kruger
conceded (correctly) that the Trust entered into a lease
with
Windfall 32 Restaurant (Pty) Ltd at a time when it knew that it was
unlawful for it to do so, i.e. as recently as August
2010 and that
the Trust knowingly acted unlawfully in arriving at the situation in
which it now finds itself. In addition, 470
Voortrekker
Road Property Holdings CC
supra
dealt with an entirely different class of rights, namely those of
asylum seekers who were facing arrest and deportation
from South
Africa. Binns-Ward J in the exercise of his discretion clearly had
to have regard to constitutional principles and
international
conventions on human rights. In the instant matter, Mr Kruger
conceded (correctly) that the only constitutional
correlation is the
rights of the employees, and that the Trust cannot rely on any
constitutional imperative.
[12]
Accordingly, and whilst the court has the utmost sympathy for the
affected employees, the blame for the position in which
they find
themselves must be laid squarely at the doors of the Trust and/or
their employer, Windfall 32 Restaurant (Pty) Ltd,
the representative
of which, so it happens, is the sister of Mr Frater, a co-Trustee of
the Trust, and the employees should pursue
whatever remedies they
have against them. The employees' position cannot in these
circumstances have an influence on this court
considering whether
the final relief sought by the Municipality and Liebenberg should be
granted.
THE
RELIEF SOUGHT BY THE MUNICIPALITY
[13]
On 19 November 2010 the Municipality filed a supplementary affidavit
in which its deponent, Mr September, informed this court
as follows:
[13.1.]
Since the Order of 23 September 2010 the Municipality has given
attention to the building plans of the Trust, but the
process of
approval or rejection of the plans has not yet been finalised;
[13.2.]
The Municipality has not yet granted provisional approval to the
Trust to proceed with the building works on the property
as is
envisaged in s 7(6) of the National Building Regulations &
Building Standards Act, 103 of 1977 ("the National
Building
Act");
[13.3.]
The Municipality has also not granted permission to the Trust to use
the building before the issue of the certificate
of occupancy, as
provided for in s 14(1A) of the National Building Act;
[13.4.]
Liebenberg has lodged an appeal against the Municipality's decision
of 1 September 2010 to approve the Trust's application
to amend the
rezoning conditions to allow,
inter
alia,
for
the restaurant to be operated on the premises;
[13.5.]
Notwithstanding the fact that the Municipality anticipates that it
will shortly be in a position to grant possible approval
in
accordance with the provisions of s 7(6) and/or s 14(1A) of the
National Building Act, the fact is that, pending the appeal
by
Liebenberg, the Municipality is not permitted to grant any sort of
approval (i.e. whether conditional or otherwise) to the
Trust to use
the property in light of the provisions of the Land Use Planning
Ordinance 15 of 1985 ("LUPO");
[13.6.]
Accordingly, the Trust's current use and occupation of the property
is unlawful.
[14]
It is in these circumstances that the Municipality seeks a final
order against the Trust in the terms set forth in the
rule
nisi
issued
on 23 September 2010, but with the following amendment, namely, that
the Trust also be interdicted and restrained from
causing or
permitting the operation of the Primi Piatti restaurant or any other
restaurant which is not part of a country shop
on the remainder of
Erf 2681 until final approval has been granted for the amendment of
conditions of rezoning applicable to
the remainder of Erf 2681
permitting the operation of such a restaurant.
[15]
In support of the amended relief sought by it, the Municipality
submits the following:
[15.1.]
Section 39(1) of LUPO requires a municipality to comply and enforce
compliance with the provisions of LUPO and the provisions
incorporated in a zoning scheme in terms of LUPO, and the
municipality
'shall
not do anything, the effect of which is in conflict with the
intention of this subsection'.
[15.2.]
Section 39(2) of LUPO provides that no person shall contravene or
fail to comply with the provisions incorporated in a
zoning scheme,
or conditions imposed in terms of LUPO
'except
in accordance with the intention of a plan for a building
as
approved
and
to the extent that such plan has been implemented
(my
emphasis);
[15.3.]
Section 20 of the regulations made in terms of s 47(1) of LUPO
(PN1050/1988 dated 5 December 1988) provides that where
a
municipality
grants
an application in respect of which objections have been received, it
shall point out to the applicant not to act on the
said approval
until such time as it is confirmed in whting that no appeal has been
received; provided that where an appeal is
received, the said
approval
shall
be suspended'
(my
emphasis);
[15.4.]
An appeal was delivered and is now to be heard by the Western Cape
MEC for Environmental Affairs & Development Planning.
(It is
common cause between the parties that the appeal process can take
four to six months, and possibly as long as two years);
[15.5.]
Whilst it is true that progress has been made with regard to the
regularizing of the building plans and possible occupation
and use
of the buildings on the erf pursuant to s 7(6) and s 14(1A) of the
National Building Act, provisional approval to occupy
the buildings
does not override the provisions dealing with the permitted use of
the erf under LUPO. Use as a restaurant remains
unlawful until the
amendment of the conditions is finally approved;
[15.6.]
The current rezoning conditions remain applicable unless and until
they are amended. They allow for operation of businesses
on a
surface area of 648m
2
and
on which the
'business
uses ...
[are]
restricted
to a country shop, nursery and a wine tasting and - sales, as
indicated on the site development plan (plan 3 dated
July 2004)'.
The
restaurant is currently only allowed if forming part of the
'country
shop';
[15.7.]
As admitted by the Trust,
'[t]he
only part of the building that is being occupied is the newly added
part occupied by the restaurant';
[15.8.]
This is not part of the
'country
shop'.
The
current use of the newly added part can only be rendered lawful if
the appeal against the granting of the amendment to the
rezoning
fails;
[15.9.]
Given the provisions of LUPO, the Municipality has a public duty not
to allow the buildings on the property to be used
in contravention
of the current applicable rezoning conditions, and accordingly it
seeks an order giving effect thereto.
[16]
In response, counsel on behalf of the Trust argued that nothing
precludes the Municipality from considering the granting
of
provisional authorisation of the building as it stands in
'its
virtually completed state'
in
terms of s 7(6) of the National Building Act and, likewise, from
granting permission in terms of s 14(1 A) of the National
Building
Act to use the building for the purposes allowed in terms of the
approved amendment to the zoning conditions. In support
of its
contention the Trust argued that the provisions of the National
Building Act override the provisions of LUPO where there
is 'a
conflict'
in
light of the provisions of s 148 of the Constitution, which read as
follows:
'148.
If a dispute concerning a conflict cannot be resolved by a Court,
the national legislation prevails over the provincial
legislation or
provincial constitution.'
[17]
The Trust also contended that the Municipality is furthermore
entitled to grant permission to the Trust to temporarily utilise
its
premises for purposes not otherwise allowed in terms of the current
zoning of the property. In support of this submission
the Trust
relies on s 15(1 )(a)(ii) of LUPO which provides that:
'15(1)(a)
An owner of land may apply in writing to the town clerk or secretary
concerned, as the case may be -
(ii)
To utilize land on a temporary basis for a purpose for which no
provision has been made in the said regulations in respect
of a
particular zone.'
[18]
In my view, the first submission on behalf of the Trust has no
merit. Firstly, counsel for the Trust conceded during argument
that
s7(1) of the National Building Act applies also to LUPO, and that
the Municipality can only grant approval in terms thereof
once
Liebenberg's appeal is dismissed. Secondly, if
'nothing'
precludes
the Municipality from considering the granting of permission or
authorisation in terms of s 14(1A) of the National Building
Act,
then this would defeat the very purpose of s 20 of the regulations
made in terms of s 47(1) of LUPO. Section 14(1 A) refers
to such
permission or authorisation being granted
'on
such conditions'
as
the local authority may deem fit. It could never have been the
intention of the legislature that the Municipality could, of
its own
accord, dispense with the peremptory provisions of the regulations
which govern the operation of LUPO itself, particular
if regard is
had to the following sections of LUPO:
[18.1.]
Section 9(1), which provides that
'control
over zoning shall be the object of scheme regulations
[18.2.]
Section 11, which provides that
'the
general purpose of a zoning scheme shall be 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'
(my
emphasis); and
[18.3.]
Section 47(1), which provides that the administrator may make
regulations relating to matters
'which
shall or may be preschbed by regulation in terms of this Ordinance
and, generally, relating to all matters which he deems
necessary
or expedient to prescribe in order to achieve the purposes of this
Ordinance
'
(my
emphasis).
[19]
Counsel for the Trust also referred me to s 150 of the Constitution
which provides that:
750.
When
considering an apparent conflict between national and provincial
legislation ... every court must prefer any reasonable
interpretation ... that avoids a conflict, over any alternative
interpretation that results in a conflict.'
[20]
To my mind, the interpretation which I have placed on the relevant
legislation achieves the objective set out in s 150 of
the
Constitution, and, on this interpretation, no conflict results as
envisaged in s 148 thereof.
[21]
As to the second submission on behalf of the Trust, namely that s
15(1)(a)(ii) of LUPO entitles the Municipality to grant
permission
to the Trust to temporarily utilise its premises for purposes not
otherwise allowed in terms of the current zoning
of the property, to
my mind, the same considerations must apply and the Municipality is
clearly bound to adhere to the provisions
of s 20 of the
regulations. In any event, s15 of LUPO sets out the procedure to be
followed by an owner of land who wishes to
utilise the land on a
temporary basis for a purpose for which no provision has been made
in the regulations in respect of a particular
zone. Section 15(2)
provides that (a) the application must be advertised if in the
opinion of the town clerk or secretary any
person may be adversely
affected thereby; (b) where objections against the application are
received, they must be submitted to
the owner for his comment; and
(c) the town clerk or secretary must obtain the relevant comment of
any person who in his opinion
has an interest in the application.
There is nothing on the papers before me to indicate that the Trust
has made any application
in terms of s 15 of LUPO, other than in a
letter written by the Trust's attorneys to the Department of
Environmental Affairs
& Development Planning on 24 November
2010, in which reference is made to the Trust's
'original
application in terms of Regulation 15
The
Trust's application was clearly made in terms of s 42(3)(a) thereof.
Indeed, in the affidavit of Mr Frater deposed to on 26
November
2010, he states that:
'Dit
is die Trust se bedoeling om, sodra aan die aspekte van die
Munisipaliteit se skrywes van 07 Oktober 2010 en 15 November
2010
voldoen is, aansoek te doen vir toestemming in terme van Artikel
7(6) & 14(1A) van die Wet op Nasionale Bouregulasies
en
Boustandaarde Wet 103/1977 asook 15(a)(ii) van "LUPO".
Dit
sal tog sinneloos wees om aansoek
re
doen
vir sekere toestemmings welwetende dat daar steeds aspekte is wat
nog nie tot die bevrediging van die Munisipaliteit aan
voldoen is
nie.'
[22]
Furthermore, counsel for the Trust confirmed during the course of
his argument that no such application has been made.
THE
RELIEF SOUGHT BY LIEBENBERG
[23]
Liebenberg also seeks an order that the
rule
nisi,
subject
to the amendment sought by the Municipality, be made final.
[24]
The Trust similarly opposes the relief sought by Liebenberg, and
argues that, for the following reasons, the
rule
nisi
should
not be made final on account of the Liebenberg application,
alternatively and in any event that Liebenberg should be ordered
to
pay the costs in respect of her application:
[24.1.]
The relief sought by Liebenberg for the demolition of the illegal
building works
'failed';
[24.2.]
In light of the Municipality's intervention, the Liebenberg
application was not essential for the grant of the
rule
nisi;
[24.3.]
Liebenberg approached this court with
'dirty
hands'
in
that she herself was in defiance of building regulations;
[24.4.]
Liebenberg's application lacked the urgency with which she initially
approached the court;
[24.5.]
Liebenberg lacked
locus
standi
in
that she failed to prove that she possessed the right, in her own
right, to stop building operations on account of a contravention
by
the Trust of the National Building Act;
[24.6.]
Even on common law grounds Liebenberg failed to establish a case for
the final interdict she claimed;
[24.7.]
The factual basis on which Liebenberg based her application was
found to be wanting by the court issuing the
rule
nisi;
[24.8.]
Liebenberg had several other remedies at her disposal;
[24.9.]
Liebenberg is advertising her guest house property for sale. From
the description of the property in the advertisement
the following
appears:
[24.9.1.]
The noise that Liebenberg submitted as the motivation for her
application could either not be heard by her guests or
could easily
have been curtailed by the application of double-glazing to the
windows. These facts were omitted from her founding
affidavit;
[24.9.2.]
It is suggested by the advertisement that the premises being
advertised for sale could be used as a coffee shop and
a retail
shop. This raises the possibility that Liebenberg's application to
this court could at least partially have been motivated
by an
ulterior purpose, i.e. stifling trade competition by the retail
businesses and restaurant on the Trust's adjacent property.
[25]
However, as pointed out by Liebenberg's counsel, the first eight
submissions made on behalf of the Trust were considered
and taken
into account by Moosa J in arriving at the findings of fact and
conclusions of law which he did when furnishing his
reasons for the
order of 23 September 2010. Save for the ninth submission on behalf
of the Trust (relating to the advertising
by Liebenberg of her
guesthouse property for sale), all of the Trust's arguments have
already been dealt with in the previous
proceedings and despite his
reservations concerning the
'noise
nuisance'
aspect
in Liebenberg's application, the learned judge nonetheless granted
the
rule
nisi
in
the terms which he did. Further, it is not submitted on behalf of
the Trust that Moosa J was incorrect in making the Order
which he
did. Accordingly, I cannot see on what basis these arguments again
have to be considered by me, particularly in light
of the views
already expressed by me with regard to the reasons handed down by
the learned judge.
[26]
As to the submissions made on behalf of the Trust relating to
Liebenberg advertising her guest house property for sale, I
do not
understand how they are at all relevant to the determination of
whether a final interdict should be granted. Firstly,
if the guest
rooms have double glazing and are
'completely
soundproofed'
it
can just as easily be concluded that Liebenberg is taking all steps
which she reasonably can to (a) run her guesthouse business
with
minimal disruption to her guests and (b) place the guest house
property in a more marketable condition. The suggestion in
her
advertisement that
'the
office area and reception are separate and could also be used as a
small
retail shop
'
(my
emphasis) can hardly, in my view, be stretched so far as to be seen
as an attempt by Liebenberg to stifle
'trade
competition by the retail businesses and restaurant on the Trust's
adjacent property'
as
was submitted by counsel for the Trust in his heads of argument.
THE
GRANTING OF A FINAL ORDER OR AN EXTENSION OF THE RETURN DATE
[27]
The three requirements for the grant of a final interdict, all of
which must be present are:
[27.1.]
A clear right on the part of the applicant(s);
[27.2.]
An injury actually committed or reasonably apprehended;
[27.3.]
The absence of any other satisfactory remedy available to the
applicant(s).
See
inter
alia Setlogelo v Setlogelo
1914
AD 221
at 227.
[28]
Both the Municipality and Liebenberg have established a clear right.
As matters stand at present, the operation of a restaurant
and the
resumption of any building work is illegal. There is no final
approval for the amendment of the existing zoning, nor
of the
building plans. Although the Municipality has now granted its
approval for the amendment of the zoning conditions, an
appeal
process is underway and accordingly such approval is suspended
pending the outcome of the appeal.
[29]
Both the Municipality and Liebenberg have established that an injury
has actually been committed as a result of the unlawful
conduct of
the Trust. It is not necessary for either to show that the injury
committed entails physical harm or pecuniary loss.
In
V&A
Waterfront Property (Pty) Ltd & Another v Helicopter &
Marine Services (Pty) Ltd & Others
2006
(1) SA 252
(SCA) at 257E-H, the court stated as follows:
'The
respondents contended nevertheless that breach did not constitute
"injury" for purposes of the second essential
requirement
for final interdict relief which was expressed in the classic
formulation as "injury actually committed or reasonably
apprehended". The argument was that "injury" in that
phrase had necessarily to entail physical harm or pecuniary
loss.
The appellants had consequently to show, so the contention
proceeded, that the helicopter was unairworthy and that its
operation involved risk to life and property.
The
argument is founded on neither authority nor principle. The leading
common-law writer on the subject of interdict relief used
the words
"eene gepleegde feitelijkheid" to designate what is now in
the present context, loosely referred to as "injury".
The
Dutch expression has been construed as something actually done which
is prejudicial to or interferes with, the applicant's
right.
Subsequent judicial pronouncements have variously used
"infringement" ofhght and 'invasion of right" ...of
course it is hard to imagine that a rights invasion will not be
effected most often by way of physical conduct but to prove the
necessary injury or harm it is enough to show that a right has been
invaded.'
[30]
Is there any other satisfactory remedy available to the Municipality
and Liebenberg? An applicant for a permanent interdict
must allege
and establish, on a balance of probabilities, that he has no
alternative legal remedy. In
Francis
v Roberts
1973
(1) RAD 507 at 512D-E the court summarised this principle as
follows:
'As
I understand the law, however, where the words "any other
ordinary remedy" are used in this context, they do not
mean the
factual remedy of the plaintiff abating the injury himself by
resorting to some physical action. They mean a remedy
which is
available through the normal processes of the law, such as a claim
for damages."
[31]
It is clear that the Municipality has no other satisfactory remedy.
The Trust submitted that the Municipality will suffer
no prejudice
at all from the suspension of the order. This however is not the
point. As stated by Moosa J when handing down the
reasons for the
order made on 23 September 2010
'the
overwhelming and undisputed evidence is that the Trust with impunity
and scant ... regard for the law carried on its unlawful
building
operations ... the
(Municipality)
asked
the Trust to desist from such conduct. Despite giving undertakings
to
(the
Municipality)
that
it will cease building operations, it reneged on such undertakings
and continued the building operations'.
It
seems to me that there is a real risk that if the order is suspended
the Trust may well resume its unlawful building operations
and the
clear indication on the papers is that the Trust will continue to
permit the premises to be used as a restaurant until
such time as
this court takes the necessary steps to prevent it from doing so.
Furthermore, conduct which is tantamount to criminal
conduct cannot
be condoned by our courts, and there is no question that the
Municipality, which has a public duty not to allow
buildings on a
property to be used in contravention of the current applicable
rezoning conditions, has any satisfactory remedy
available to it
other than the grant of a final order by this court.
[32]
As to Liebenberg, the Trust submitted that she now appears to object
to the business development only on the basis of noise
nuisance. It
was submitted that her complaints in this regard may be addressed
'by
other far less drastic means than ousting the Trust, the restaurant
and the numerous employees of the restaurant (of whom
the great
majority are breadwinners) from earning a living'.
This
submission does not however address whether Liebenberg has any other
satisfactory
remedy
available to her. To my mind, she may have other remedies available
to her, but none are satisfactory on the facts before
me. Whether,
in the event that Liebenberg's appeal against the approval by the
Municipality of the amendment to the rezoning
of the property is
refused and the noise level in future exceeds the permissible level,
Liebenberg would be at liberty to pursue
other remedies, is not the
issue. The fact of the matter is that the restaurant is being
conducted (with the attendant alleged
impermissible noise levels)
unlawfully. What may or may not happen in the future, should the
restaurant operate lawfully, is
in my view not a factor which has
any material bearing on whether Liebenberg currently has any other
satisfactory remedy.
CONCLUSION
[33]
In the result, the
rule
nisi
issued
on 23 September 2010 is hereby made final subject to the amendment
sought by the Municipality and Liebenberg. I accordingly
make the
attached Order.
J
I CLOETE, AJ