Brief Summary

Municipal Law — Land Use Management — Zoning — KwaDukuza Municipality sought to interdict Build-Rite Properties from using Erf 220 as a hardware store, alleging non-compliance with zoning regulations. The second and third respondents, cited as project manager and director respectively, were included in the application. The court found no justification for including them as parties, dismissing the application against them and ordering the municipality to pay their costs. The court also dismissed the municipality's interdict application, granting a counter-application that confirmed the zoning allowed for a hardware shop on the property. Costs were ordered against the municipality for the counter-application and certain costs were allocated to the first respondent.

Comprehensive Summary

Summary of Judgment

Introduction

This was an urgent motion application in the KwaZulu-Natal Local Division, Durban, brought by the KwaDukuza Municipality as applicant against Build-Rite Properties (Pty) Ltd as first respondent, together with Marlin Naidoo (second respondent) and Mohsin Gani (third respondent). The matter concerned municipal enforcement in relation to building works, occupation of a newly constructed building, and the lawfulness of a proposed land use under the applicable zoning scheme.

The proceedings began on 13 December 2019, accompanied by a certificate of urgency seeking a hearing on 18 December 2019. On 18 December 2019, the matter was adjourned with directions for further affidavits and with certain undertakings recorded. On 27 January 2020, an interim order was granted, largely mirroring undertakings given by the respondents. The matter later proceeded on the basis that the applicant sought to have interim-type relief made final, while the first respondent pursued a counter-application for declaratory relief relating to zoning.

The general subject-matter was the legality of construction-related activities on Erf 220, CBD Stanger (63 Balcomb Street, KwaDukuza), including whether occupation and further building work should be interdicted pending compliance steps, and whether the property’s Core Mixed Use (MUC 3) zoning permitted operation of a hardware shop (including a “wholesale hardware shop”) or whether such use was prohibited as a “builder’s supply yard”.

Material Facts

In May 2019, the municipality approved building plans for a building the applicant described as a “warehouse type building” on Erf 220. The respondents’ papers (accepted as relevant by the court) indicated that the documentation submitted with the plans reflected an intention to use the property as a hardware store, and that a boundary signboard advertising the intended use would have been visible during construction.

By September 2019, a municipal building inspector noticed earthworks that had lowered the ground level of Erf 220 relative to neighbouring properties. On 15 October 2019, municipal officials inspected the site. The applicant alleged that the earthworks had undermined adjacent Erf 221 and that a wall had collapsed; the respondents disputed the alleged collapse and contended that any wall removal was controlled and carried out on engineering advice, linked to stormwater issues. What was common to both versions, and treated by the court as material, was that the site conditions demonstrated the need for retaining structures and raised municipal concern about safety and compliance.

A central factual feature affecting costs was the handling of engineering information. The applicant’s founding case suggested uncertainty or vagueness about engineering supervision and the absence of engineering drawings. The court found that this was contradicted by the record: engineering drawings for the retaining structures were sent to the municipality’s official on 22 October 2019, were electronically acknowledged, and were later placed before the court. The court treated this as establishing that the founding presentation was materially inaccurate on that aspect.

In late November 2019 and early December 2019, the municipality conducted further site visits and alleged that retaining structures had not been built and that the site remained dangerous. The respondents issued denials, but the court considered that contemporaneous photographs supported the view that little had been done by mid-December to implement the engineering design, and that remedial work was indeed required. The municipality issued violation notices and, on 6 December 2019, also raised occupation and public-protection concerns. The municipality further issued notice of intended prosecution for “operating a hardware” at a site where, it alleged, such use was prohibited.

As to occupation, the applicant alleged that the incomplete building was being stocked with materials and that this constituted partial occupation; the respondents denied occupation and denied trading. The court proceeded on the basis that the evidence did not establish trading, and it treated the occupation concerns as having lost practical significance by the time of the final hearing.

The events immediately preceding litigation included a municipal demand for an undertaking not to open the store on 16 December 2019 (as advertised). The first respondent replied on 13 December 2019 that it would not open on 16 December 2019. Despite that, the municipality launched the urgent application on 13 December 2019, asserting that the undertaking did not resolve concerns, particularly relating to the dangerous excavation.

After the interim order of 27 January 2020, subsequent events included the first respondent’s completion of the building and retaining structures and disputes concerning municipal inspection and the issuance of an occupation certificate. The judgment recorded that those later certification disputes were not before the court, and that the building remained unoccupied. The practical necessity for final conditional interdictory relief concerning construction and occupation had largely fallen away by the time of final determination.

The remaining decisive factual context for the zoning dispute was that Erf 220 was zoned Mixed Core Use 3 (MUC3) and that the first respondent intended to operate a hardware shop in the building, while the municipality contended that such use fell within a prohibited “builder’s supply yard”.

Legal Issues

The court was required to determine, first, whether final relief should be granted in relation to the municipality’s conditional interdicts aimed at restraining occupation without an occupation certificate and restraining further building work other than retaining-wall work subject to engineering supervision or approved plans. Although these issues originally involved factual disputes about site conditions and compliance, by the time of final argument the inquiry was largely whether such interdictory relief still served a purpose and how it should affect costs.

The central and most consequential issue was the proper construction and application of the KwaDukuza Land Use Management Scheme provisions applicable to the MUC3 zone. This was primarily a dispute of law (interpretation) and its application to the proposed use, namely whether a hardware shop was permitted as a “shop” (commercial) or “wholesale shop” (industrial), or whether it was prohibited because it allegedly constituted a “builder’s supply yard” as defined in the scheme.

A further issue concerned costs, including whether it was justified to cite the second and third respondents and how to allocate costs given the interim order, later developments, and the mixed trajectory of success on different components of the case. This required an evaluative exercise and the exercise of a judicial discretion on fairness.

Court’s Reasoning

On the joinder of the second and third respondents, the court reasoned that the application was “all about” construction by the owner of Erf 220, the first respondent. The second respondent was the project manager and the third respondent a director of the first respondent, but the papers did not justify relief against them personally. Any unlawful conduct in relation to construction would be attributable to the first respondent as owner and principal. The court therefore dismissed the application against them and ordered the municipality to pay the additional costs caused by their inclusion.

On disputes of fact, the court rejected the applicant’s submission that there were no material disputes on the papers. It held that where disputes were bona fide and real, the respondents’ version had to be accepted on those aspects, and that some such disputes bore materially on one aspect of the case. However, the court ultimately treated these factual disputes as chiefly relevant to costs, because the conditional interdicts no longer warranted final relief.

Regarding the conditional interdicts about occupation and further building work, the court considered that there was little reason to suppose that final interdictory relief would now have a practical purpose. It noted that matters on Erf 220 were presently being handled as required by law, and there was no evidence that the first respondent was extending or threatening to extend occupation in the sense originally targeted in December 2019. The court therefore approached these issues on the footing that final interdicts were unnecessary, and it discharged the interim order of 27 January 2020.

The court’s reasoning on zoning focused on the scheme’s table of permitted uses for MUC3, which included “shop” under commercial uses and “warehouse” and “wholesale shop” under industrial uses. The court reasoned that a hardware shop is a species of “shop” and is therefore permitted; and that describing the enterprise as “wholesale” would, in any event, align it with “wholesale shop”, another freely permitted use. The court treated the terminology (“builder’s hardware shop” versus “wholesale hardware shop”) as not affecting permissibility on the scheme’s structure.

The municipality attempted to avoid that conclusion by invoking the defined term “builders supply yard”, defined as “premises which is used for the storage or sale of building material and equipment”, and argued that “premises” includes buildings, so that a hardware shop necessarily fell within the prohibited category. Applying interpretive reasoning consistent with the approach in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), the court held that this construction was unsound. It accepted that “premises” can, depending on context, denote land and/or buildings, and that zoning controls can apply to both land and buildings. However, it held that the definition in question is a definition of a “yard”, and that in ordinary usage a “yard” denotes open land adjoining or associated with buildings, not an enclosed building itself.

The court reasoned that the definition’s purpose was not to redefine “yard” into something that could be a building, but to distinguish what sort of yard is meant by the phrase “builder’s supply yard” as opposed to other yards. It held that treating any shop selling building-related items as a prohibited “builder’s supply yard” would give the excluded use an overbroad meaning and would be inconsistent with the functioning of a zoning category such as MUC3. The court contrasted the typical impacts of a builder’s supply yard—large open land storage, industrial-scale stock such as sand and bricks, and associated heavy vehicle traffic—with the more limited and different impacts of a hardware shop operating within a building. On that basis, it concluded that the municipality’s interpretation was incorrect and that the proposed hardware shop use was permitted.

In addressing consistency with earlier litigation, the court noted that KwaDukuza Municipality v Stangvest Investments (Pty) Limited and Others (case number 1006/2019, KwaZulu-Natal Division, Durban) had reached the same zoning conclusion. The municipality contended that decision was clearly wrong, but the court held that the conclusion in that matter was correct.

On costs, the court emphasised that costs orders are discretionary and must be made judicially with fairness to both sides, referring to Ward v Sulzer 1973 (3) SA 701 (A). The court found fault on both sides. On the one hand, the municipality made material missteps, including failing to disclose in the founding papers that engineering drawings had been submitted and incorrectly asserting that an engineer’s affidavit had not been delivered timeously. On the other hand, the court was not persuaded by the first respondent’s denial that little had been done by mid-December to address dangerous site conditions, and it considered that the first respondent did not take the unsafe conditions as seriously as it ought to have done. The court accepted that municipal officials were justified in anxiety about safety and compliance, and that the municipality’s litigation was connected to its public duty, even if more engagement might have avoided proceedings.

Given the interim order and later developments, and to avoid taxation complications of attempting to separate costs by issue, the court adopted a pragmatic temporal division. It treated the interim relief of 27 January 2020 as reflecting substantial success for the municipality up to that date on the conditional interdict component, but held that the later phase was dominated by the zoning dispute on which the municipality failed.

Outcome and Relief

The application against the second and third respondents was dismissed, and the municipality was ordered to pay the additional costs occasioned by citing them.

The interim order of 27 January 2020 was discharged. The municipality’s application for a final interdict restraining use of Erf 220 as a hardware store or builder’s supply yard was dismissed.

The first respondent’s counter-application was granted, with a declaration that the Core Mixed Use (MUC 3) zoning applicable to Erf 220 permits the operation of a wholesale hardware shop or hardware shop within a shop building on the property. The municipality was ordered to pay the costs of the counter-application.

Costs in the main application (apart from those relating to the second and third respondents) were split temporally: costs incurred up to and including 27 January 2020 were ordered to be paid by the first respondent, while costs incurred after 27 January 2020 were ordered to be paid by the municipality.

Cases Cited

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)

Ward v Sulzer 1973 (3) SA 701 (A)

KwaDukuza Municipality v Stangvest Investments (Pty) Limited and Others (case number 1006/2019, KwaZulu-Natal Division, Durban)

Legislation Cited

KwaDukuza Land Use Management Scheme (including the zoning provisions for Mixed Core Use 3 (MUC3) and the definition of “builders supply yard”)

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The court held that it was unjustified to pursue relief against the second and third respondents in their personal capacities in circumstances where the construction and any non-compliance were attributable to the first respondent as owner and principal.

The court held that final conditional interdictory relief concerning occupation and building work was no longer necessary, and therefore discharged the interim order granted on 27 January 2020.

On the zoning dispute, the court held that a hardware shop is permitted under the MUC3 zoning as a “shop”, and that characterising it as “wholesale” did not render it prohibited because “wholesale shop” is also a freely permitted use in that zone. The court held that the prohibited use “builders supply yard” refers to a yard in the ordinary sense and cannot sensibly be construed so broadly as to prohibit a hardware shop operating within a building.

The court held that costs should be allocated in a nuanced way, reflecting substantial success by the municipality up to 27 January 2020 on interim-type relief, but failure thereafter on the central zoning issue, together with fairness and the parties’ respective missteps.

LEGAL PRINCIPLES

The judgment applied the principle that interpretation of regulatory instruments such as zoning schemes must be undertaken contextually and purposively, consistent with the approach articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), and must avoid strained constructions that produce insensible results in light of the language used and the apparent function of the provisions.

In construing defined terms, the court emphasised that a definition must be understood with regard to the word or concept it defines and the purpose of the definition. A definition that uses a broad term such as “premises” cannot be read to transform the essential nature of the defined concept (here, a “yard”) so as to include something that, in ordinary language and context, it is not.

The judgment affirmed that costs are governed by a judicial discretion grounded in fairness and all relevant circumstances, and that the general rule that costs follow the result may be adjusted where the litigation history, interim outcomes, parties’ conduct, and practical considerations (including taxation complexity) justify a tailored order, consistent with Ward v Sulzer 1973 (3) SA 701 (A).

The judgment also proceeded on the principle that, where genuine and material disputes of fact arise on motion papers, the court cannot decide the matter on the applicant’s disputed version, and will accept the respondents’ version on those disputed aspects where the disputes are bona fide and real, particularly where those disputes affect consequential determinations such as costs.

Kwadukuza Municipality v Build-Rite Properties (Pty) Ltd and Others (D10675/2019) [2021] ZAKZDHC 24 (12 August 2021)