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[2012] ZASCA 181
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Emilel Investments (Pty) Ltd v Silvestri and Others (080/2012) [2012] ZASCA 181 (29 November 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 080/2012
In
the matter between:
EMILEL INVESTMENTS (PTY) LTD
...........................................................................................
Appellant
and
MARIA GIOCONDA LINDA GIORGIA SILVESTRI
.......................................................
First
Respondent
IAN DU PLESSIS
......................................................................................................
Second
Respondent
BARRY WILLIAM GIE
...................................................................................................
Third
Respondent
SEA POINT HIGH SCHOOL
........................................................................................
Fourth
Respondent
GOVERNING BODY SEA POINT HIGH SCHOOL
.........................................................
Fifth
Respondent
DAVID
VAN RENSBURG
...............................................................................................
Sixth
Respondent
VICTORY
TICKETS 943 CC
.....................................................................................
Seventh
Respondent
THE
CITY OF CAPE TOWN
.......................................................................................
Eighth
Respondent
THE MEC (MINISTER) FOR EDUCATION,
THE WESTERN CAPE PROVINCIAL GOVERNMENT
..............................................
.Ninth
Respondent
THE MEC (MINISTER) FOR TRANSPORT AND PUBLIC WORKS,
WESTERN CAPE PROVINCIAL GOVERNMENT
.......................................................
Tenth
Respondent
Neutral
citation:
Emilel Investments v Silvestri & Others
(080/2012)
[2012] ZASCA 181
(29 NOVEMBER 2012)
Coram:
Lewis, Cachalia, Malan, Petse JJA and
Plasket AJA
Heard:
26 November 2012
Delivered: 29 November 2012
Summary: Interdict – zoning scheme regulations
– promulgated in terms of Land Use Planning Ordinance 15 of
1985 –
school property zoned general residential – place
of instruction – soccer centre – five-a-side soccer
pitches
with club house constructed on school property –
commercial use of centre – not permissible.
__________________________________________________________________
ORDER
On appeal from:
The Western Cape High Court, Cape
Town (Le Grange J sitting as court of first instance):
1. The appeal is dismissed with costs;
2. The cross-appeal is upheld with costs;
3. The order of the court below is replaced by the
following:
‘
(a) It is declared that the
first respondent’s operation of the Gianluca Vialli soccer
centre and the fourth respondent’s
conducting of a craft market
on erven 718 and 1445 Sea Point East are unlawful.
(b) The first and fourth respondents are ordered to
cease performing the said activities forthwith.
(c) The first and fourth respondents are ordered jointly
and severally to pay the applicants’ costs including the cost
of
two counsel and the qualifying fees of Mr T B Brümmer.’
___________________________________________________________________
JUDGMENT
Malan JA (Lewis, Cachalia, Petse JJA and Plasket AJA
concurring)
[1] The Gianluca Vialli Soccer Centre is named after the
famous Sampdora, Juventus and Italy striker as well as former Chelsea
coach.
The centre is located in Cape Town on erven 718 and 1445 Sea
Point, on the grounds of the Sea Point High School. The centre
consists
of two five-a-side astroturf soccer pitches with bright
flood lights and a club house. The Sea Point High School lies between
Main,
Beach, Norfolk and St James Roads, Sea Point, Cape Town.
Several blocks of flats adjoin these roads. The school has existed on
the property for more than 126 years. The property itself belongs to
the government of the Western Cape.
[2] In an application brought by the first to third
respondents against the appellant and various other parties, Le
Grange J in
the Western Cape High Court declared that the operation
by the appellant of the centre and the use of the school grounds by
the
sixth respondent for the conducting of a craft market were
unlawful. He issued an interdict prohibiting the continuation of
these
activities but suspended its operation for 90 days. He ordered
each party to pay its own costs.
[3] The parties appealed: the appellant, the operator of
the centre, against the interdict granted and the first three
respondents,
owners of properties around the school, against the
costs order made despite their having been successful. In what
follows I shall
refer to the first to third respondents as ‘the
respondents’.
[4] The respondents applied for the interdict on two
grounds. First, that the appellant’s use of the property was in
breach
of the zoning scheme regulations of the City of Cape Town as
promulgated under the Land Use Planning Ordinance 15 of 1985 (LUPO).
Secondly, that the use of the property constituted a common-law
nuisance, and included the illegal sale of liquor on the property.
In
view of my conclusion it is only necessary to refer to the first
ground relied upon.
[5] The City of Cape Town (the eighth respondent), the
Provincial Minister for Education (the ninth respondent) and the
Provincial
Minister for Transport and Public Works (the tenth
respondent) abided the decision of the High Court. The City, however,
filed
an affidavit confirming that no formal consent had been
furnished by it in terms of the scheme regulations for any consent
use
in respect of the property, and that no consent had been granted
for use of the property for non-school purposes. An affidavit was
filed on behalf of the Minister for Transport and Public Works, the
custodian of the property in terms of the
Government Immovable Asset
Management Act 19 of 2007
stating that, if the school continued to
utilise the property for the purpose for which it was allocated,
namely school related
activities, there would be no need to rezone
the property. It added that,
‘
if the [Minister] were compelled, by way of
application or other related process, to apply for rezoning, then the
application would
only be considered on the basis, and to the extent,
that it is necessary for school purposes and/or related activities.’
[6] The governing body of the school and the seventh
respondent (Victory Tickets) concluded an agreement of lease on 21
January
2010 in terms of which the latter hired from the school a
portion of the property,
consisting of two tennis
courts to be converted into two football pitches, two change rooms, a
car park, a grass field on which
the lessee intended constructing an
additional three five-a-side pitches and a club house. Victory
Tickets in turn sublet the property
to the appellant. The lease was
for a period of ten years with two options for renewal of ten years
each. The rental payable was
R100 000 per annum with no
provision for escalation. Should the lessee, however, operate more
than two football pitches an
additional R50 000 per annum would
be payable. The lease gave the lessee use of and access to the
property on weekdays between
14h00 and 23h00, on Saturdays, Sundays
and public holidays between 10h00 and 23h00 and, in addition, on
weekdays from 09h00 to
14h00
unless the school
formally indicated by giving two weeks’ notice that it required
the property specifically during those times.
The school had the use
of and access to the property on weekdays between 09h00 and 14h00
only,
provided it booked the centre by giving two
weeks’ notice. The school could use the rented property only on
three weekends
per year.
[7] The appellant redeveloped the property. During June
2010 corporate soccer league games commenced. In addition, the
pitches and
the club house were hired out for five-a-side football
events. The improvements were effected at the expense of the
appellant and
at a cost of approximately R2 million.
[8] The property is subject to the City’s zoning
scheme regulations. The general purpose of a zoning scheme is to
determine
land use rights and to provide for control over those
rights and the use of land within the area of jurisdiction of a local
authority
(s 11
of LUPO).
Section 39(2)(a)
of LUPO provides that no
person shall contravene or fail to comply with the provisions
incorporated into a zoning scheme. A contravention
or failure to
comply is an offence. The Premier is empowered to make regulations in
respect of all land in the Province
(s 8).
The object of the
regulations is the ‘control over zoning’, and the
regulations may authorise the granting of departures
and subdivisions
by a council
(s 9(1)).
[9] Regulation 15(1) of the Municipality of Cape Town
Zoning Scheme: Scheme Regulations (as amended on 19 November 2007)
defines
‘use’ in relation to land to include ‘the
erection thereon of any structure not being a building’.
Sub-regulation
2 continues:
‘
No land falling under a Use Zone (whether
or not such land is or is not part of the site of a building) shall
be used for a purpose
for which a building may not be erected or used
on such land; provided that where a building may be erected or used
for a particular
purpose on land with the consent of the Council,
such land may be used for such purpose with such consent.’
In terms of reg 15(3), the categories of buildings which
may be erected or used, and those which may be erected or used only
with
the consent of the Council in each of the use zones specified in
the table following reg 15(3) are prescribed in columns 2 and 3
respectively. Where the property is zoned general residential the
permitted buildings are:
‘
Blocks of flats; Double Dwelling Houses;
Dwelling Houses; Groups of Dwelling Houses; Places of Worship;
Residential Buildings.’
‘
Places of instruction’
are permitted in a general residential zone but only with the
consent
of the Council
. A
‘place of instruction’ is defined in the scheme
regulations as:
‘
a school, college, or other educational
building and any boarding establishment appurtenant thereto, whether
or not on the same
site as such school or other building, and a
crèche, nursery school, monastery, convent, public library,
public art gallery,
museum or
place of
instruction in sport where the primary purpose of the activity is
instruction as opposed to participation or spectating
by the public
.’
(The words emphasised were inserted in 2007 and replaced the word
‘gymnasium’).
[10] From the main report of Mr T A S Turner, the
appellant’s town planning consultant, it emerges that the
school predated
the first town planning scheme by more than half a
century. The utilisation of the property for the purpose of a school
was therefore
lawful use as contemplated by LUPO. Turner stated that
since the school was permitted in a general residential zone the use
of
the property for a school was a lawful consent use to which the
City had tacitly consented.
There is no evidence
of an express or formal consent. This is common cause.
[11] After the replying papers had been filed Mr Turner
filed a supplementary affidavit in which he stated that the current
scheme
regulations were preceded by a town planning scheme in terms
of the previous Townships Ordinance 33 of 1934. That scheme was
referred
to as the 1964 Revised Final Statement and in terms of it
the property was zoned general residential. A place of instruction
was
listed as one of the categories of building which could be
erected and used in this zone. In other words, it was a
permitted
and not a consent use. A ‘place of instruction’
under the 1964 scheme meant:
‘
a school, college, or other educational
building meaning boarding establishment appurtenant thereto, whether
or not on the same
site as such school or other building, and a
crèche, nursery school, monastery, convent, public library,
art gallery, museum
or gymnasium.’
However, as was demonstrated by Mr T B Bümmer, the
respondents’ consultant, the 1964 town planning scheme was
amended
on 19 August 1985 (by amendment 484 as promulgated in terms
of s 35
bis
of
Ordinance 33 of 1934) the effect of which was to make the consent of
the City a requirement for use of property zoned general
residential
as a place of instruction.
[12] The 1964 town planning scheme was,
when
LUPO came into effect on 1 July 1986,
deemed to
be a zoning scheme that was in force in terms of s 7(1) of LUPO. It
was replaced in 1990 by the current scheme regulations
which were
promulgated in terms of s 9(2) of LUPO in Provincial Gazette 4649, 29
June 1990. The definition of ‘place of instruction’
was
amended with effect from 18 May 2007 replacing the word ‘gymnasium’,
as I have indicated in paragraph 9 above.
[13]
Le Grange J did not deal with
the alleged nuisance but based his judgment on the applicable zoning
regulations. First, he noted
that it was common cause that at the
time the 1990 regulations came into force and replaced the 1964
regulations the school’s
property enjoyed general residential
zoning rights. The 1990 regulations could not detract from those
rights. When the 1964 regulations
were replaced in 1990, any further
rights accruing to a landowner could only have accrued in terms of
the 1990 regulations. It
followed, he said, that after the amendment
in 2007 the right to use the property as a gymnasium continued (it
being an accrued
right (s 7(1) of LUPO)). In addition, by virtue of
the 2007 amendment, the property could also be used as a ‘place
of instruction’
in sport. It was common cause that the Council
did not at any time consent to the use of the school’s property
as a place
of instruction in sport. However, the use of its property
for the purpose of a school was lawful consent use to which the City
had tacitly consented.
[14] Le Grange J found that the appellant’s use of
the property did not amount to instruction in sport but rather to
participation
and spectating by the public in sport. The operation of
both the five-a-side soccer enterprise and the market amounted to use
of
the property for commercial purposes.
‘
Objectively viewed, these facilities,
whatever the noble purpose between the School and the relevant
Respondents that prompted their
development, can never be regarded as
a place of instruction in sport where the primary purpose of the
activity is instruction.
The primary activity is for commercial
purposes where there is participation and spectating by the public.’
I agree with this.
[15] In this court it was argued on behalf of the
appellant that the school, having acquired and exercised a right to
operate as
such before 1990, could not be required to seek consent
from the City to continue to operate as a school. The right of the
school
to use the property as a school included all school related
activities including instruction in sport. The school could also use
the property as a place of instruction as a permitted use (in terms
of the 1964 Revised Final Statement). It was accordingly submitted
that the school had the right to use its property for any of the
purposes reflected in the definition of a place of instruction
from
time to time.
[16] In addition, it was argued that in determining
whether use of the property constitutes a breach of the scheme
regulations regard
must be had to the use of the buildings itself and
the nature of the activities conducted there, rather than to the use
by a particular
person or persons. In this regard it was emphasised
that the court below erred in considering the activities of the
appellant and
not the overall activities carried out at the centre
and determined by its primary purpose. The court, therefore, wrongly
determined
the primary purpose of the appellant’s activities by
relying on the lease agreement and the fact that the corporate league
was the primary revenue generator of the centre.
[17] These contentions are difficult to follow. The
essential question is whether the appellant’s use of the
property for
its five-a-side soccer centre is permitted in terms of
the property’s zoning. The property is zoned general
residential and
this zoning does not allow for its use for the
purposes of the appellant’s business. The injunction in s 39 of
LUPO not to
contravene and to comply with the zoning regulations
binds everyone, including the appellant. The school’s
historical use
of the property as a school does not assist the
appellant: the right to use the property as a school accrued to the
school itself.
Nor does the appellant’s use of the property
fall within the definition of a ‘place of instruction’.
Even if
consent for this use had been obtained the primary purpose of
the centre’s activity is not instruction in sport but
participation
in and spectating by the public. The appellant’s
five-a-side soccer enterprise is a commercial activity the primary
purpose
of which is not instruction in sport.
[18] Nor do the zoning rights accruing to the property
under the 1964 regulations assist the appellant. These rights
included the
right to use the land as a ‘school’ as a
permitted use. In May 1985 the right to use the property as a place
of instruction
was altered to require the council’s consent.
The 1990 regulations replaced the 1964 regulations. In these
circumstances
the only right that ‘accrued’ to the school
was the right to use the property as a ‘school’ without
the
council’s consent being necessary. This right survived the
repeal of the 1964 regulations and their replacement by the 1990
regulations. The 1990 regulations after their amendment in 2007
provided for the use of the property as a place of instruction
in
sport as a consent use. Such consent use is based on the 1990
regulations and was never a right that accrued under the 1964
regulations. The school never obtained the consent of the council to
use the property as a place of instruction in sport. The only
right
it enjoyed was to use the property as a ‘school’.
[19] However, it was contended by the appellant that to
determine whether a contravention of the zoning regulations had taken
place
one had to have regard to the overall activities carried out at
the facility and not to a particular user in question. As counsel
for
the respondents demonstrated, this contention is flawed: for example,
the use of a house on property zoned single residential
for two hours
per day to run a bar and restaurant cannot be lawful. It follows that
the use of school property for a few hours
a day to run a restaurant
or a five-a-side soccer enterprise cannot be made lawful by the use
of the property as a school during
school hours.
[20] The appellant also invoked
s 20(2)
of the
South
African Schools Act 84 of 1996
which permits the governing body of a
school to allow the reasonable use of the school facilities for
community, social and fund-raising
purposes. This argument was
correctly rejected by the court below. The section does not release a
school from compliance with other
laws (
Die Ferdinand Postma
Hoërskool v Die Stadsraad van Potchefstroom & others
[1999] 3 All SA 623
(T) at 634-5).
[21] The court below suspended the operation of its
order for a period of 90 days to ameliorate the disruption an
interdict would
cause. In its heads of argument the appellant seeks a
further suspension by order of this court to allow for an application
for
rezoning of the property. No case had been made out in the
appellant’s papers for any suspension and certainly not for a
further suspension by this court. There is no indication that the
tenth respondent, the owner of the property, intends bringing
a
rezoning application. On the contrary, as I have pointed out, the
tenth respondent indicated that if he was compelled to apply
for
rezoning he would only do so to the extent necessary to permit
educational and related school activities. The tenth respondent
cannot be compelled to apply for rezoning. Nor can the outcome of
such application be predicted with any confidence. Suspending
any
order would merely prolong the appellant’s illegal conduct. Le
Grange J resolved to make the order of suspension because
of what he
regarded as the ‘inexcusable delay’ in launching the
application. He also referred to the advantages accruing
to the
school and to the fact that some members of the public supported the
establishment of the centre and revamping of the tennis
courts. As I
will show, there was no undue delay in launching the application. Nor
can the fact that some members of the public
support the centre
provide a justification for the continuation of an illegal state of
affairs. Le Grange J exercised his discretion
to suspend his order
for the wrong reasons where there were indeed no facts justifying a
suspension. The suspension should be set
aside and, a fortiori, the
request for a further suspension declined.
[22] The court below ordered that, in view of what it
regarded as an unreasonable or inexcusable delay in launching the
application,
each party should pay its own costs. The application was
launched on an urgent basis on 15 December 2010 and set down for
hearing
on 27 January 2011 when it was postponed by agreement to 23
March 2011. Constructing the soccer pitches commenced in March 2010
and the applicants were aware in June 2010 that the school grounds
were being upgraded. They were also aware in June 2010 that
corporate
league soccer matches were played at the centre. On 17 July 2010 a
function which was described as ‘most disruptive’
was
held. Liquor was sold during August 2010 and the market introduced
in December 2010. Because the applicants had known since
June 2010 that games were played on the pitches they should, the
court
found, have investigated the matter and taken action much
sooner. Because of their failure to explain why activities they had
known
of since June 2010 became urgent in December 2010 the court
deprived the applicants of their costs.
[23] Although a court will seldom interfere on appeal
with the costs order of the court below interference in this matter
is required.
The City initially took the lead in enforcing the scheme
regulations by serving two notices on the appellant on 7 October 2010
and 5 November 2010. Before then the applicants had to ascertain the
identity of the appellant, who owned the property, the relevant
zoning provisions and the different legal interests of the various
organs of state. The appellant launched an urgent application
on 1
November 2010 and the applicants took steps to intervene. The
appellant’s attorneys informed the applicants on 23 November
2010 that the appellant was no longer pursuing the urgent
application. No prejudice was suffered by the appellant during the
time
of the delay. The court should have made a costs order in favour
of the successful party.
[24] In the result the following order is made:
1 The appeal is dismissed with costs;
2 The cross-appeal is upheld with costs;
3 The order of the court below is replaced by the
following:
‘
(a) It is declared that the
first respondent’s operation of the Gianluca Vialli soccer
centre and the fourth respondent’s
conducting of a craft market
on erven 718 and 1445 Sea Point East are unlawful.
(b) The first and fourth respondents are ordered to
cease performing the said activities forthwith.
(c) The first and fourth respondents are ordered jointly
and severally to pay the applicants’ costs including the cost
of
two counsel and the qualifying fees of Mr T B Brümmer.’
___________
F R MALAN
JUDGE OF APPEAL
APPEARANCES:
For Appellant: BK Pincus SC and IC Bremridge
Instructed by:
Biccari Bollo Mariano Inc
Cape Town
Van der Merwe & Sorour
Bloemfontein
For 1
st
, 2
nd
& 3
rd
Respondents: SP Rosenberg SC
Instructed by:
Minde Shapiro & Smith Bellville Cape Town
C/o Gerald Shnaps Attorneys
Cape Town
Symington & De Kok
Bloemfontein