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[2020] ZAECPEHC 32
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Nelson Mandela Bay Metropolitan Municipality v Van Zyl (1441/2019) [2020] ZAECPEHC 32 (1 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.:
1441/2019
Date Heard: 20
August 2020
Date Delivered: 1
September 2020
In
the matter between:
THE
NELSON MANDELA BAY METROPOLITAN MUNICIPALITY
Applicant
and
MARIUS
VAN ZYL (EXECUTOR IN THE ESTATE OF THE
LATE
PAUL KRUGER POTGIETER)
Respondent
JUDGEMENT
RONAASEN
AJ:
Introduction
[1]
The applicant, the Nelson Mandela Bay Metropolitan Municipality,
launched an application during May 2019 against one Paul Kruger
Potgieter in terms of which it sought the following relief against
Mr
Potgieter, namely that he be:
1.1.
interdicted from using the immovable property described as erf 22582,
Uitenhage and situated at 23 Sellick Street, Uitenhage (“the
property”) for any purpose other than a use permitted
in terms
of section 8 of the Land Use Planning Ordinance, 15 of 1985, as
amended; and
1.2.
directed to pay the costs of the application.
[2]
Prior to the hearing of this application Mr Potgieter passed away
and
he was substituted as respondent by the executor of his estate, Mr
Marius van Zyl, in whom the property now vests.
[3]
During October 2016 the applicant received a complaint from a member
of the public that scrap metal was being dumped on the verge of the
property, where a scrapyard business was being conducted under
the
name and style of Global Scrap Metal. That complaint was the
precursor to a series of events which culminated in the
launching of
this application.
[4]
It is not in dispute between the parties that the business of a
scrapyard has at all relevant times been conducted on the property.
At issue between the parties is whether the conduct of
such business
contravened the applicant’s zoning scheme regulations as they
applied in Uitenhage.
[5]
It is furthermore not in dispute that on 7 February 2017 the
applicant
issued a zoning certificate in respect of the property, in
terms of which the applicant certified that the property was zoned
“
Special Industrial
” in terms of the applicant’s
zoning scheme regulations for Uitenhage, Uitenhage falling within the
area of jurisdiction
of the applicant.
The
events preceding the launching of this application
[6]
On 2 November 2016 the applicant conducted an inspection of the
property, which confirmed that the property was being used as a
scrapyard. Photographs were taken to confirm this use of the
property.
[7]
On 3 November 2016 the applicant addressed correspondence to Mr
Potgieter, informing him that he was contravening the Uitenhage
zoning scheme by conducting a scrapyard business on property.
In this letter it was recorded that the property was zoned
“
Industrial
”, which zoning allowed for the primary
use of the property as a location for industrial buildings, public
garages and warehouses.
The zoning allowed for various
secondary uses of the property, which uses included scrapyards.
The property could only be
used for a secondary use, such as a
scrapyard, with the special consent of the council of the applicant.
[8]
The letter of 3 November 2016 was followed by meeting between Mr
Potgieter and representatives of the applicant. According to
the applicant’s founding affidavit Mr Potgieter, at that
meeting, undertook to desist from encroaching on the road verge with
scrap metal, to cease conducting the business of a scrapyard
and to
apply for special consent to the applicant’s council to enable
him to operate a scrapyard business on the property.
Mr
Potgieter, in his opposing affidavit, disputed having undertaken to
apply for special consent to use the property as a scrapyard
as, as
far as he was concerned, he had already obtained such special consent
from the applicant. He did, however, undertake
to investigate
the matter regarding the property’s zoning, since he and the
officials of the applicant present at the meeting
had differing views
in this regard.
[9]
An investigation report produced by the applicant on 21 November
2016, with reference to the meeting referred to in the preceding
paragraph, only records that at the meeting Mr Potgieter was informed
to clean the verge of the property and to remove all unattended
vehicles and trucks that were parked on the road reserve.
It
states, also that he was advised to comply with the zoning scheme
regulations. Significantly no reference is made in the
report
to an undertaking by Mr Potgieter to cease conducting the business of
a scrapyard on the property or to apply to the council
of the
applicant for special consent to operate a scrapyard on the property.
To that extent it is at variance with the version
put up by the
applicant in its founding affidavit.
[10]
On 24 November 2016 a further complaint from a member of the public
was received
by the applicant regarding the untidy nature of the
property.
[11]
Over the period December 2016 to January 2017 more inspections of the
property were
conducted, which confirmed that it was still being used
as a scrapyard. The applicant, thereafter, resorted to
instructing
its attorneys in the matter who, on 15 May 2017,
addressed a demand to Mr Potgieter, placing him on final terms to
refrain from
using the property in a manner which was contrary to the
applicant’s zoning scheme on or before 31 May 2017. This
letter,
incorrectly so, records that the property is zoned for
industrial purposes. This recordal is in conflict with the zoning
certificate
issued by the applicant in respect of the property, on 7
February 2017, confirming its zoning as “
Special
Industrial
”.
[12]
On 31 January 2019, what is described as a final inspection was
conducted of the
property. An inspection report confirmed the
alleged continuation of unlawful activities being conducted on the
property
in the form of a scrapyard business. The report does
not refer to the abovementioned zoning certificate or attempt to
explain
why, in the light of the certificate, the scrapyard business
conducted on the property remained illegal.
[13]
This application was launched in May 2019.
[14]
No mention is made in the founding affidavit of what transpired in
the period between
31 May 2017 and May 2019, when this application
was brought. Mr Potgieter, also, in his opposing affidavit, is
not enlightening
as to what happened in the intervening period.
[15]
What clearly did occur in the intervening period was that the
applicant, on 7 February
2017, issued a zoning certificate in respect
of the property in terms of which it was certified that the property
was zoned as
“
Special Industrial
” in terms of the
Uitenhage Zoning Scheme. Unfortunately neither the applicant
nor Mr Potgieter furnished any information
in their respective
affidavits as to the circumstances in which the zoning certificate
was issued. The only logical conclusion
is that as result of
the pressure exerted by the applicant, Mr Potgieter applied for the
property to be zoned as “
Special Industrial
” as
opposed to its hitherto existing zoning of “
Industrial
”
and that such application was approved by the applicant, as is
confirmed by the zoning certificate.
Discussion
[16]
At the hearing of the application I had to request the legal
representatives of the
applicant to provide me with a copy of the
applicant’s zoning scheme regulations, applicable to
Uitenhage. Though the
applicant clearly relied on the
provisions of the regulations to support the relief it sought in the
application, it did not see
fit to place the terms of the regulations
before me, either in the body of the founding affidavit or by way of
an annexure to the
founding affidavit. Practitioners should be
reminded of the salutary rule of practice that when a party relies on
subordinate
legislation, which may not be readily available to the
court it should place such legislation before the court to enable it
to
decide on matters where the provisions of such legislation are
relevant.
[17]
In terms of the zoning scheme regulations made available to me
subsequent to argument,
the terms “industrial zone” and
“special industrial zone” are not defined. The
regulations contain
a reference to “industrial” and
“special industrial zone” but are not really helpful
regarding the dispute
I am required to determine other than to
confirm that there is a distinction, for various purposes, between
the two zoning categories.
For instance it is contemplated the
special industrial buildings will require a larger floor space, with
more loading bays.
[18]
As stated, it is common cause that the property is zoned “
Special
Industrial
”. In this regard the applicant states as
follows in paragraph 10.1.3 of its replying affidavit:
“
The
Respondent is zoned as a Special Industrial, in terms of the
Uitenhage Zoning Scheme. Thus, in order for the Respondent
to
use the property as a scrapyard he would have to apply for Special
Consent from the council and that is why the last column
on the table
is written ‘consent use’. The term denotes that an
individual would have to obtain consent in order
to use the property
for that use and primary use denotes that the property is primarily
zoned for any of the uses listed therein.”
[19]
The abovementioned statement is made with reference to to a table
described by the
applicant in its replying affidavit as “an
extract from the zoning scheme regulation table which sets out the
applicable
zoning categories and usages” (“the table”).
The table was annexed to Mr Potgieter’s opposing affidavit.
In terms thereof, in respect of Uitenhage:
19.1.
properties zoned “
Industrial
” may be primarily
used to house industrial buildings, public garages and warehouses.
The special consent of the council
of the applicant is required to
use such properties for the housing of business premises, shops,
scrapyards, noxious industrial
buildings and special buildings; and
19.2.
with regard to properties zoned “
Special Industrial
”
no primary use is described and there is only provision for the use
of the property with the consent of the applicant’s
council for
use of the property to house industrial buildings (excluding noxious
industrial buildings), warehouses, public garages,
business premises,
shops, scrapyards and special buildings.
[20]
The zoning scheme regulations clearly allow for and distinguish
between two categories
of zoning, namely “
Industrial
”
and “
Special Industrial
”.
[21]
In argument before me the respondent’s attorney contended that
in view of the
description of “
Special Industrial
”
zoning in the table, which did not envisage a primary use for
property so zoned and only envisaged consent use of property
so
zoned, an application for a zoning of “
Special Industrial
”
of necessity entailed an application to the applicant’s council
to use the property for one of the consent uses envisaged
in the
table. I find this contention to be compelling.
[22]
Clearly an application for “
Special Industrial
”
zoning of the property amounts to an application to use the property
for one of the consent uses envisaged in the table.
In order to
qualify for such a zoning an applicant would have to satisfy all the
criteria necessary to obtain consent use approval
from the
applicant’s council. To suggest that after such a zoning
has been granted to an applicant, that such applicant
would have to
apply again, on the basis of the same criteria, for special consent
from the council of the applicant to use the
property in one of the
manners envisaged in the table would render the distinction made in
the regulations and in the table between
the “
Industrial
”
and “
Special Industrial
” zoning categories
meaningless.
[23]
The applicant placed the zoning certificate confirming a zoning of
“
Special Industrial
” before me in its founding
affidavit. It did not enlighten me as to the circumstances in
which it was issued to Mr
Potgieter, where it obviously was in a
position to do so from its records.. It simply contended that,
in effect, there was
no difference between the two classes of zoning
and in either event the special consent of the applicant’s
council would
have to be obtained for the consent uses set out in the
table. This argument ignores the distinction between the two
classes
of zoning and, if sustained would render the distinction
meaningless. If the zoning scheme regulations and the table are
interpreted
purposively an application for a “
Special
Industrial
” zoning must be construed as being an
application to the applicant’s council to use the property for
one of the consent
uses contemplated in the table.
[24]
It would place an unnecessary administrative burden on both the
applicant and applicants
for “
Special Industrial
”
zoning if two applications for consent had to be made, as contended
by the applicant, for effectively the same thing. Such
a process,
again, would render the distinction between the two zoning categories
meaningless.
Conclusion
and order
[25]
Thus, the applicant’s argument cannot be sustained.
[26]
In the result the application is dismissed with costs.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
Adv Desi instructed by Karsans Inc, Port Elizabeth
For
Respondent: Mr Huisamen instructed by
Schaefer Inc, Port Elizabeth