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City of Johannesburg v Tequila and Another (775/11) …

City of Johannesburg v Tequila and Another (775/11) [2012] ZASCA 121 (20 September 2012)

70 Reportability

Land and Property Law

Brief Summary

Town Planning — Zoning scheme — Interpretation of primary use rights — Appellant sought to interdict respondents from operating a restaurant and bar on property zoned for hotel use only — High Court found operation permissible as ancillary to hotel use — Appeal court held that zoning scheme did not permit standalone restaurant or bar, as primary rights explicitly excluded such uses — High Court's interpretation erroneous, leading to absurdity — Respondents' claim of municipal consent for restaurant use dismissed as lacking factual basis — Appeal upheld, interdict granted against restaurant and bar operation, and order for demolition of unauthorized structure issued.

Full Judgment Text (Click to expand)

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[2012] ZASCA 121
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City of Johannesburg v Tequila and Another (775/11) [2012] ZASCA 121 (20 September 2012)

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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 775/11
Not reportable
In the matter between:
CITY OF JOHANNESBURG
...........................................................................
Appellant
and
CANTINA TEQUILA
..........................................................................
First
Respondent
BOWLWEB INVESTMENTS CC
..................................................
Second
Respondent
Neutral citation:
City
of Johannesburg v Cantina Tequila
(775/2011)
[2012] ZASCA 121
(20
September 2012).
Coram:
Brand,
Lewis, Cachalia, Bosielo and Theron JJA
Heard:
6
September 2012
Delivered: 20
September 2012
Summary: Where a Town
Planning Scheme includes among its primary rights the conduct of a
hotel business, the scheme cannot be interpreted
to permit a stand
alone restaurant and bar.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
South
Gauteng High Court, Johannesburg (Kolbe AJ sitting as court of first
instance):
1 The appeal succeeds
with costs including the costs of two counsel. The order of the high
court is set aside and the following
order is substituted in its
place:
‘
(a)
The first and second respondents are interdicted and restrained from
using or causing or permitting the use of Erf 1918 Witkoppen

Extension 85 Township, Registration Division IQ, Gauteng and situate
at Unit 13 Valley View Centre, Campbell Road, Fourways (the

property), for the purpose of a restaurant or bar.
(b) The first and second
respondents are ordered to forthwith cause the demolition of the
corrugated iron structure erected at the
entrance to and enclosing
the outside patio of the property.
(c) Failing compliance in
full by the respondents with the terms and provisions of the order in
para (b) above within one week from
date hereof, the sheriff of the
court is authorised and directed to attend to the necessary
demolition and the removal of the rubble
arising from the demolition.
(d) The first and second
respondents are ordered to pay the costs of and in connection with
the necessary demolition and removal
of the rubble, jointly and
severally.
(e) The first and second
respondents are ordered to pay the costs of this application, jointly
and severally.’
2 The date contemplated
in (c) above is the date of this court’s order.
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA
(Brand, Lewis, Bosielo
and Theron concurring):
[1] This is an appeal
against a decision of the South Gauteng High Court (Kolbe AJ)
dismissing an application by the appellant,
a metropolitan
municipality, to interdict the respondents from conducting a
restaurant and bar business on a property in Sandton
allegedly in
contravention of the Sandton Town Planning Scheme (the scheme). The
high court upheld the respondents’ assertion
that the business
did not contravene the scheme. The appellant seeks to reverse this
finding and comes before this court with leave
of the high court. The
essential dispute between the parties is whether the scheme, properly
interpreted, permits the operation
of a restaurant and bar business
on the property.
[2] The municipality’s
authority to regulate land use within the Sandton area comes from the
Town-Planning and Townships Ordinance
15 of 1986. The principal
instrument for carrying out this function is a town-planning scheme.
1
The general purpose of a
town-planning scheme – sometimes referred to as a ‘zoning
scheme’ – must be directed
towards:
‘
the
co-ordinated and harmonious development of the area to which it
relates in such a way as will most effectively tend to promote
the
health, safety, good order, amenity, convenience and general welfare
of such area as well as efficiency and economy in the
process of such
development.’
2
[3] Clause 12 of the
scheme is relevant to this appeal. Appendix III to this clause
indicates the purposes for which land may be
used or on which
buildings may be erected and used. The property that is the subject
of this dispute is zoned ‘Special’
in terms of the
scheme. This means that the property may be used only for the special
purposes identified in the scheme. These
special purposes are
referred to as ‘primary rights’ or more appropriately as
‘primary use rights’ –
as the municipality refers
to it – and may be exercised without the consent or permission
of the municipality. Certain other
rights referred to as consent
rights may be exercised with the consent of the municipality –
an issue that is relevant to
the respondents’ alternative
contention discussed below at paras 10-12.
[4] The annexure to the
scheme, referred to in the papers as the amendment scheme 02-1649
(the amendment scheme), identifies the
following primary use rights
and consent rights that are applicable to this property.
‘
Offices,
showrooms, including motor showrooms, public garages and motor
cities, hotels, specialised extensive retail facilities
including
factory shops, value centres, flea markets, home and garden
improvement centres and DIY centres, and with the consent
of the
local authority, light industrial/commercial purposes, places of
amusement, places of instruction,
recreational
purposes as may be permitted with the written approval of the Council
and
which do not create any nuisance, noise, dust, smoke or smells.’
(Emphasis added.)
[5] It is apparent from a
plain reading of the amendment scheme that the primary land use
rights identified do not include a restaurant
or bar. However, one of
the rights identified is that of a hotel. The high court upheld the
respondents’ contention that
because hotels usually also have
restaurants and bars it follows that the amendment scheme also
permits stand alone restaurants
and bars. The learned judge reasoned
that it would lead to absurdity and anomaly to interpret the primary
use rights to exclude
a restaurant or bar because this would mean
that a hotel would not be able to have, as an ancillary use, a
restaurant or bar.
[6] I disagree with this
approach. The language of the clause is plain and unambiguous. It
permits only identified primary use rights,
not any other uses.
Significantly, excluded from the identified uses is any reference to
a ‘place of refreshment’,
which the scheme defines as
including a restaurant, but not a bar.
3
This must mean that
drafters of the amendment scheme probably consciously excluded any
‘place of refreshment’ –
including a restaurant –
from the clause.
[7] Had the restaurant
and bar business been part of a hotel, there would have been merit in
the submission that the business is
ancillary to the hotel, and does
not detract from the primary right of a hotel. But it does not follow
that because a restaurant
and bar may be part of the ancillary uses
of a hotel, they may also be read into the list of primary rights, as
the high court
found.
[8] A court is entitled
to find that an interpretation is absurd if an omission is so glaring
or out of kilter with the overall
purpose of the scheme that the
result could simply not have been contemplated. But a court may not,
under the guise of a concern
to avoid absurdity, ignore the clear
language of a provision simply because of any perceived harshness or
lack of wisdom.
4
Nor may it construe the
provision in a manner that the language does not permit, for in so
doing it is improperly substituting its
will for that of the
lawmaker.
[9] By concluding that a
restaurant and bar should be added to the lawmaker’s list of
permissible uses so as to avoid absurdity
and anomaly, the learned
judge improperly substituted her will for that of the lawmaker.
Although it may appear odd that the primary
rights include hotels but
not restaurants and bars, I do not think that this omission is so
glaring or out of kilter with the purpose
of the scheme that it can
be said that such a result could never have been contemplated. On the
contrary there may be sound policy
reasons why the lawmaker would
permit hotels but not bars and ‘places of refreshment’
such as restaurants. It follows
that the high court erred in its
conclusion that the primary use rights in the scheme permitted the
conduct of the business of
a restaurant and a bar.
[10] The respondents
contend in the alternative that even if the scheme did not permit
these uses, the municipality consented to
the first respondent
conducting a restaurant business on the property. There is no factual
basis for the contention.
[11] These are the facts:
On 30 March 2006 Mr H P Roos, a town planner, wrote to the
municipality on behalf of the respondents to
enquire whether a bottle
store, butcher or restaurant is included in the list of permissible
uses or whether a rezoning or consent
use application would be
required for these uses. The municipality responded to the ‘query’
in the following terms:
‘
Your query
dated 30 March 2006 regarding the inclusion of bottlestore, butcher
and restaurant in the current zoning, was discussed
[at] a Planning
Permission Meeting (PPM) held on the 11 May 2006.
Based on the information provided, the
above uses are included in terms of the approved rights.
The applicant’s attention is
drawn to the following:
This information does not bind the
Municipality in anyway whatsoever to approve any application on the
subject property.
The information in the above regard
should not be seen or interpreted as approval in principal of any
application that may follow
suit on the subject property.’
[12] Relying on this
exchange of correspondence, the respondents contend that the
municipality’s response amounted to a formal
approval or
consent for a restaurant on the property. The contention is utterly
without any merit: first, the letter from the town
planner was not an
application for the approval of a restaurant business, but merely a
‘query’ as to permissible uses
under the scheme; second,
the municipality conveyed the information to the respondents
specifically on the basis that it was not
bound to approve any
future
application based on this information. At best for the
respondents the municipality gave them a non-binding opinion on their
prospects
for approval of a restaurant – nothing more.
[13] What remains is a
dispute over whether the respondents must demolish a structure clad
with corrugated iron, which they erected
at the entrance to and
enclosing the patio of the restaurant, without the municipality’s
permission.
[14] In terms of s 4 of
the National Building Regulations and Building Standards Act 103 of
1977, no structure that falls within
the ambit of the definition of a
building may be erected without the written approval of the local
authority. No approval was obtained
for the erection of the
structure. The Act defines a building as including:
‘
(a)
any
other structure, whether of a temporary or permanent nature and
irrespective of the materials used in the erection thereof,
erected
or used for or in connection with –
(i) the accommodation or convenience
of human beings or animals;
. . .’
[15] The structure
obviously falls within the definition of a ‘building’.
However, the high court refused to order the
demolition of the
structure after it found that there was a dispute of fact on the
papers as to whether the structure was a building
or merely a
pergola, for which permission was not required, as the respondents
contended. Counsel for the respondents wisely did
not press this
contention before us as it too is devoid of any merit.
[16] In the result the
following order is made:
1 The appeal succeeds
with costs including the costs of two counsel. The order of the high
court is set aside and the following
order is substituted in its
place:
‘
(a)
The first and second respondents are interdicted and restrained from
using or causing or permitting the use of Erf 1918 Witkoppen

Extension 85 Township, Registration Division IQ, Gauteng and situate
at Unit 13 Valley View Centre, Campbell Road, Fourways (the

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