Nelson Mandela Bay Metropolitan Municipality v Harlech-Jones NO and Others (2243/08) [2010] ZAECPEHC 2 (28 January 2010)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2010
>>
[2010] ZAECPEHC 2
|

|

Nelson Mandela Bay Metropolitan Municipality v Harlech-Jones NO and Others (2243/08) [2010] ZAECPEHC 2 (28 January 2010)

FORM
A
FILING
SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISIONJUDGMENT
PARTIES:
NMBMM v Mark Edward Harlech-Jones
Case Number:
2243/08
High Court:
Eastern Cape Division
DATE HEARD:
26/11/2009
DATE
DELIVERED:
28/01/2010
JUDGE(S):
Roberson J
LEGAL
REPRESENTATIVES –
Appearances:
for the Applicant(s):
Adv G Goosen
for the Respondent(s):   Adv  van der Linde
Instructing
attorneys:
for
the
Applicant(s):
Rushmere & Noach Inc
for the Respondent(s):   John B Scott attorneys
CASE
INFORMATION –
Nature of proceedings.
Topic:
Key Words:
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
CASE NO. 2243/08
In
the matter between
NELSON
MANDELA BAY METROPOLITAN
MUNICIPALITY APPLICANT
and
MARK
EDWARD HARLECH-JONES N.O. FIRST RESPONDENT
JOHN
MICHAEL MERRICK N.O. SECOND RESPONDENT
WANDA
HERSELMAN t/a ROME RESTAURANT
PIZZERIA
AND GUESHOUSE THIRD RESPONDENT
BLUE
SANDS TRADING 888 CC FOURTH RESPONDENT
JUDGMENT
ROBERSON J
[1]
This application eventually resolved into one for an order
interdicting the third and fourth respondents from utilising the
property known as erf 71 Fernglen, Port Elizabeth (‘the property’),
for any purpose other than that envisaged in the restrictive
condition of title contained in the title deed of the property (‘the
restrictive condition’), which provides that the property
‘shall
be used only for the purpose of erecting thereon one dwelling
together with such outbuildings as are ordinarily required
to be used
therewith.’ The third respondent is the sole member of the fourth
respondent, which is the owner of a restaurant business
known as
‘Rome Restaurant Pizzeria and Guesthouse’ (‘the restaurant’),
which business is conducted on the property. The
applicant maintains
that the operation of the restaurant on the property is in breach of
the restrictive condition.
[2]
It is necessary to refer to the history of the application. The
application started out as one for an order against the first,
second
and third respondents, interdicting them from utilising the property
for any purpose or use other than for Residential 1 use,
as provided
for in the Port Elizabeth Zoning Scheme Regulations, promulgated in
terms of Section 8 of the Land Use Planning Ordinance,
15 of 1985
(‘LUPO’). The first and second respondents are the trustees of
the 356 Cape Road Trust, which was the former owner
of the property.
Shortly before the application was brought, unknown to the applicant,
the property was transferred into the name
of the third respondent.
The application was subsequently withdrawn against the first and
second respondents. When I use the term
‘respondents’ in this
judgment I am referring to the third and fourth respondents.
[3]
The restaurant has been run on the property since 26 December 2006.
The property was zoned as Residential 1, and the operation
of the
restaurant was in breach of the zoning regulations. An application
by the third respondent in terms of LUPO made on 12 February
2007,
for the rezoning of the property to Special Purposes (Guest House and
Restaurant) was refused by the Mayoral Committee of the
applicant on
1 October 2008. (The application for rezoning made specific
reference to the restrictive condition.) The restaurant
continued to
operate and this application was then brought on 24 October 2008.
The bulk of the application was taken up by the breach
of the zoning
regulations but there was mention of the restrictive condition in the
affidavits, and in the applicant’s heads of
argument, a wider order
than that framed in the notice of motion was sought, to include the
interdict referred to in paragraph [1]
above. On 10 November 2008
the third respondent appealed in terms of LUPO to the Member of the
Executive Council for Local Government
and Traditional Affairs,
Eastern Cape Province (‘the MEC’), against the refusal of the
rezoning application. The appeal was
heard on 4 August 2009, and on
20 November 2009, six days before the hearing of this application,
the MEC upheld the appeal. The
application for rezoning of the
property from Residential 1 to Special Purposes to permit a
guesthouse and restaurant was approved.
The dispute therefore fell
to be decided on a much narrower basis than that originally
contemplated.
[4]
The respondents’ resistance to the order as presently sought, was
two-fold: firstly that the restrictive condition did not
prohibit
the operation of the restaurant and secondly that in upholding the
appeal the MEC also removed the restrictive condition.
Interpretation
of the restrictive condition
[5]
Clause B4 of the conditions contained in the deed of transfer of the
property is as follows:
‘4. This erf shall be subject to the following further conditions,
provided especially that where, in the opinion of the Administrator
after consultation with the Townships Board and the local authority,
it is expedient that the restriction in any such condition should
at
any time be suspended or relaxed, he may authorise the necessary
suspension or relaxation subject to compliance with such conditions
as he may impose:
it shall not be
subdivided.
it shall be used
only for the purpose of erecting thereon one dwelling together with
such outbuildings as are ordinarily required
to be used therewith;
not more than half
the area thereof shall be built upon;
no building or
structure or any portion thereof, except boundary walls and fences,
shall be erected nearer than 7,87 metres to the
street line which
forms a boundary of this erf, nor within 3,15 metres of the rear of
1,57 metres of the lateral boundary common
to any adjoining erf,
provided that with the consent of the local authority, an
outbuilding not exceeding 3,05 metres in height
measured from the
floor to the wall plate and no portion of which will be used for
human habitation, may be erected within the
above prescribed rear
space. On consolidation of any two or more erven, this condition
shall apply to the consolidated area as
one erf.’
As
already mentioned, the restrictive condition on which the applicant
relies is clause B4 (b).
[6]
Mr. Goosen, who appeared for the applicant, submitted that the
restrictive condition restricts use of the property to residential
purposes, and that the word ‘dwelling’ should be given its
ordinary meaning. According to the Shorter Oxford English Dictionary
3
rd
edition, ‘dwelling’ means ‘a place of residence;
a dwelling-place, habitation, house.’ The meaning of
‘dwelling-place’
is given as ‘a place of abode’. In line
with that meaning the use of the property was therefore restricted to
residential use
and the operation of a business was a breach of the
restrictive condition.
[7]
Mr. van der Linde, who appeared for the respondents, submitted that
clause 4 of the conditions as a whole deals with subdivision
of the
property and the erection of buildings on the property. If the
Administrator had intended to restrict the use of the property
to
residential purposes, he would have expressly said so. A comparison
was made between this restrictive condition and one contained
in
another deed of transfer which was annexed to the respondents’
answering affidavit by way of example. That condition provided
‘that
this erf shall be for residential purposes only.’
[8]
I do not think the comparison is of assistance in interpreting the
restrictive condition. There is no prescribed wording for
restrictive conditions relating to residential use. What is
significant is that not only is the word ‘dwelling’ contained in
the restrictive condition but also the word ‘used’. This relates
to use of the property. It is the only reference to use of
the
property in the conditions contained in the deed of transfer. If one
looks at examples of restrictive conditions in title deeds,
some
reference is usually made to the purpose for which the particular
property may be used, eg. for residential purposes, for shop
purposes, for a garage service site, for industrial purposes, etc.
The word ‘used’ in conjunction with the word ‘dwelling’
contained in the restrictive condition therefore, in my view, leads
to an interpretation that the property was to be used for residential
purposes, and the operation of the restaurant is therefore a breach
of the restrictive condition.
Removal
of the restrictive condition by the MEC
[9]
The decision of the MEC in upholding the appeal was communicated to
the respondents by letter which read as follows:
‘
APPEAL:
REZONING OF ERF 71 FERNGLEN, PORT ELIZABETH
Kindly
note that the MEC for the Department of Local Government &
Traditional Affairs resolved on 20 November 2009 to uphold the
appeal
against the refusal of the rezoning of Erf 71 Fernglen, Port
Elizabeth from Residential 1 to Special Purposes by the Nelson
Mandela Bay Municipality to permit a guesthouse and a restaurant
thereon in terms of the Land Use Planning Ordinance, 1985 (Ord.
15 of
1985), subject to any reasonable conditions imposed by Council. The
reasons to uphold the appeal are as follow (sic):
The proposed
rezoning is in accordance with the policy of the Council to allow
restaurants abutting residential areas;
The amenity of the
area has already been compromised and will not be further affected
by the proposed rezoning; and
The area is
suitable for a transitional use type and for potential development
in accordance with the principles of the
Development Facilitation
Act, No. 67 of 1995
.
The
granting of the application for rezoning of the property from
Residential 1 to Special Purposes to permit a guesthouse and
restaurant
is hereby approved.’
[10]
S 44
of LUPO deals,
inter alia
, with appeals against the
refusal of a rezoning application. In terms of
s 44
(3) of LUPO, if
the MEC upholds such an appeal, the result is that the application
for rezoning is deemed to have been granted by
the council of the
municipality. Zoning Scheme Regulation 1.6.5 however provides that:
‘Nothing
in these regulations shall be construed as permitting any person to
do anything which is in conflict with the conditions
registered
against the title deed of the land.’
In
upholding the appeal did the MEC also remove the restrictive
condition? Mr. Goosen submitted not. The restrictive condition is
a
praedial servitude imposed for the benefit of other erf holders and
before the MEC removes such a restrictive condition from a
title
deed, he is obliged to act in terms of the Removal of Restrictions
Act 84 of 1967, which provides
inter alia
, for publication of
the proposed removal in the Provincial Gazette, notice to the local
authority, and notice in the Provincial Gazette
calling for
objections from land owners whose rights may be affected by the
removal. In submitting that the restrictive condition
was praedial
in nature, Mr. Goosen referred to the judgments in
Malan and
another v Ardconnel Investments (Pty) Ltd
1988 (2) SA 12
(A) and
the unreported case of
Wilma Emmerentia van Rensburg N.O. and
another v Equus Training and Consulting CC and others
, case
number 1440/07 SECLD, judgment delivered 29 March 2008.
[11]
Mr. van der Linde submitted that the restrictive condition was not a
praedial servitude, that the Removal of Restrictions Act
did not
apply, and that the MEC could
mero motu
remove the restrictive
condition. He referred to the retention by the Administrator, in
clause B4 of the title deed conditions,
of the right to suspend or
relax the restrictive conditions. In support of his argument he
referred to the following cases:
Rossmaur Mansions (Pty) Ltd v
Briley Court (Pty) Ltd
1945 AD 217
,
Garden Cities v Registrar
of Deeds
1950 (3) SA 239
(C), and
Ex Parte Fitzpatrick
1962 (2) SA 1
(E). In
Rossmaur
it was held that if
restrictive conditions were not framed in terms rendering them
subject to future cancellation or variation, they
had to be regarded
as conferring rights of a permanent nature which could not be
cancelled or varied by a Townships Board or any
other authority, by
virtue of powers of administration exerciseable over a township. In
Garden Cities
, which concerned a township established in terms
of Township Ordinance 33 of 1934, restrictive conditions which were
subject to alteration
and amendment by the Administrator in terms of
s 18 (3) of the Ordinance, were held not to confer rights to
consultation or objection
on other owners of erven in the township.
In
Fitzpatrick
it was held that a restrictive condition
imposed generally but with the right of the Administrator to vary
individually, could not
be enforced against another lot-owner.
[12]
On the strength of these cases the restrictive condition appears not
to be praedial in nature. In addition, in determining
whether or not
a registered condition of title is personal or praedial in nature,
the court must rely on the available evidence.
According to the deed
of transfer Fernglen Township was approved by the Administrator in
terms of Township Ordinance 33 of 1934.
There was no evidence of an
express intention that the restrictive condition was imposed for the
benefit of other erf owners. There
was no evidence that the
Administrator had imposed similar restrictive conditions on the other
erven in the township, or that the
restrictive condition in question
was consistent with the general scheme of the township in order to
preserve its character. These
latter factors are indications that a
restrictive condition was imposed for the benefit of owners of other
erven in the township.
(See Silberberg and Schoeman
The Law of
Property
fifth edition, at 347, referring to the guidelines laid
down in the case
Elliston v Reacher
(1908) 2 Ch 374
, which
guidelines have been followed by South African courts.) In
Malan
and
van Rensburg
(
supra
) conditions had been imposed on
all or some of the other erven in the respective townships. In
Malan
there was evidence of the history of the establishment of the
township and the conditions imposed by the Administrator on the
various
erven, and in
van Rensburg
there was no dispute
between the parties that the restrictive condition was praedial in
nature. I therefore am unable to conclude
that the restrictive
condition in question is a praedial servitude and that other erf
owners in the township would be entitled to
notice if it was to be
removed.
[13]
In any event, I do not think that this dispute about the nature of
the restrictive condition is relevant to my decision. The
nature of
the servitude determines whether or not other person’s rights will
be affected by its removal and how it may be removed.
The Removal of
Restrictions Act may be applicable, or the Administrator (Premier)
can purport to act in terms of clause B4 of the
title deed conditions
or in terms of Section 18 (3) of the Township Ordinance 33 of 1934,
as submitted by the respondents. (Section
18 (3) of Ordinance 33 of
1934 provided that the Administrator could alter or amend conditions
with the consent of the owner). There
is no evidence of compliance
with any of these procedures. For example, if the MEC acted
mero
motu
in terms of the Administrator’s powers contained in the
restrictive conditions, he would first have to consult with the
Township
Board and the Local Authority. He would not be allowed to
act in terms of Section 18(3) of Ordinance 33 of 1934 because that
section
does not empower him to remove a restrictive condition for
the benefit of the owner of the erf. (See
Ronnie’s Motors (Pty)
Ltd and others v Van der Walt and others
1962 (4) SA 660
(A)).
In my view the question is not did the MEC act irregularly in
removing the restrictive condition but did he remove it at all?
In
my view he did not remove the restrictive condition.
[14]
In the third respondent’s submissions on appeal to the MEC, which
were annexed to her answering affidavit in this application,
she made
no request for the removal of the restrictive condition. What was
before the MEC was an appeal in terms of LUPO against
the refusal of
the rezoning application. This is a statutorily prescribed
procedure. The MEC’s decision in upholding the appeal
was deemed
to be a decision of the applicant and what was communicated to the
respondents was an approval of the rezoning application.
If
the MEC had decided to remove the restrictive condition, it is highly
unlikely he would not have expressly communicated such decision.
The
applicant’s submissions in the appeal were annexed to the third
respondent’s supplementary affidavit in this application
and
express reference was made to the restrictive condition and its
meaning. A decision to remove a restrictive condition of title
has
important implications, involving as it does a real right and an
alteration to title deed conditions which would have to be
communicated
to the Registrar of Deeds. This sort of decision cannot
simply be implied, merely because the existence of the restrictive
condition
would be in conflict with the rezoning. Mr. van der Linde
submitted that the MEC would not have acted irrationally in allowing
the
appeal and leaving the restrictive condition in place. The point
is that the two decisions are separate, with their own requirements
and consequences.
[15]
Mr. van der Linde also submitted that in allowing the appeal the MEC
interpreted the restrictive condition as not preventing
the operation
of a restaurant. There is no evidence that that was his
interpretation and even if there was, I would not be bound
by such
interpretation, and, as submitted by Mr. Goosen, such an
interpretation does not amount to a suspension or relaxation of
the
restrictive condition. I have in any event reached a different
conclusion on the meaning of the restrictive condition.
[16]
I must conclude therefore, as submitted by Mr. Goosen, that the MEC
acted in good faith and only decided the appeal before him
and did
not summarily ignore the proper procedures to be followed in removing
the restrictive condition. The restrictive condition
therefore
remains in force. As Froneman J said in
van Rensburg
at
paragraph [13]:
‘Both
by operation of law and the express wording of the zoning regulations
the title deed conditions take precedence over town
planning
schemes.’
The
operation of the restaurant is therefore in breach of the restrictive
condition and the interdict prayed for must be granted.
[17]
Mr. van der Linde finally submitted that if the interdict was
granted, its operation should be suspended pending an application
for
the removal of the restrictive condition, which application he said
would be made the same day this application was heard. A
court does
not have a general discretion to suspend the operation of an
interdict and may only do so if exceptional circumstances
exist.
(
United Technical Equipment Co. v Johannesburg City Council
1987 (4) SA 343
TPD at 347 F-G and
Strathsomers Estate Company
Limited v Ehlers
, unreported, ECD case no. 670/08 paragraph [3].)
[18]
In my view, exceptional circumstances do not exist. When the
application for rezoning was made, the respondents were aware
of the
restrictive condition. When this application was brought, the breach
of the restrictive condition was expressly referred
to in the
founding affidavit. The respondents’ answer was that the
restrictive condition should be otherwise interpreted. The
respondents were therefore aware at that stage that there was a
dispute about the meaning of the restrictive condition but did not
apply for its removal. Even when this application was argued, the
respondents’ approach seems to have been one of speculation
about
the intention of the MEC with regard to the restrictive condition
when he allowed the appeal. This is somewhat inert conduct.
Most
importantly, at the time this application was heard, no such
application for removal had been brought. In both
United
Technical Equipment
and
Strathsomers Estate
(
supra
)
applications for removal of restrictive conditions were pending, and
in both cases a suspension of an interdict was refused. In
the
answering affidavit the third respondent said that if the restaurant
closed she would suffer financially and her employees would
lose
employment, but I do not think that this consideration outweighs the
other factors I have mentioned. The respondents chose
to continue
operating the restaurant in spite of the restrictive condition. Such
conduct has been found in my judgment to be unlawful
and the
applicant is entitled to enforce compliance with the restrictive
condition.
[19]
I make the following order:
19.1 The respondents are interdicted from utilising the property erf
71 Fernglen, Port Elizabeth, for any purpose other than that
envisaged in the restrictive condition of title contained in clause
B4(b) of the title deed of such property.
The respondents are ordered to pay the costs of the application,
jointly and severally, the one paying the other to be absolved.
J.M. ROBERSON
JUDGE OF THE HIGH
COURT
Apearances:
Applicant:
Mr. G. Goosen SC, instructed by Rushmere & Noach Inc, Port
Elizabeth
Respondents:
Mr. H. van der Linde SC, instructed by John B. Scott Attorneys, Port
Elizabeth.
16