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[2023] ZAKZPHC 32
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Kwadukuza Municipality v Mahomedy and Others (5189/2020P) [2023] ZAKZPHC 32 (17 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 5189/2020P
In
the matter between:
KWADUKUZA
MUNICIPALITY
APPLICANT
and
AHMED
EBRAHIM MAHOMEDY
FIRST RESPONDENT
ISMAIL
EBRAHIM MAHOMEDY
SECOND RESPONDENT
ELITE
CARS
THIRD RESPONDENT
UNLAWFUL
OCCUPIERS: ERF [....] KWADUKUZA
FOURTH RESPONDENT
[....]
K [....] G [....] ROAD, KWADUKUZA
Coram:
Koen J
Heard:
27 February 2023
Delivered:
17 March 2023
ORDER
Judgment is granted in
the following terms:
1.
It is declared that it is unlawful for the respondents or any person
to
conduct the following activities at the property more fully
described as Erf [....] Stanger (KwaDukuza) at [....] K
[....] G [....] Road, KwaDukuza (“the property”):
1.1
repairing motor vehicles;
1.2
servicing motor vehicles;
1.3
otherwise attending to work on motor vehicles;
1.4 any
activities that result in the discharge of oil onto the property; and
1.5 any
activities allied to those in sub-paragraphs 1.1 – 1.4.
2.
It is declared that all immovable structures on the property are
unlawful
in that no building plans have been submitted for those
structures.
3.
It is declared that it is unlawful to dump waste, litter and other
items
on the property or to permit such items to be dumped and/or
stored at the property.
4.
In respect of all built immovable structures on the property, the
first
and second respondents are ordered to demolish those built
immovable structures within 40 days of the grant of this order.
5.
If the first and second respondents fall to comply with the order in
paragraph
4 above within the specified time period, the applicant is
authorised to:
5.1 enter
onto the property;
5.2 demolish
all built immovable structures on the property;
5.3 claim
from the first and second respondents, jointly and severally, the one
paying the other to be absolved, the
fair and reasonable costs
incurred in such demolition;
5.4 set the
matter down, on the same papers supplemented as may be necessary, for
a money judgment against the first
and second respondents to recover
the costs contemplated in paragraph 5.3 above,
6.
The respondents are interdicted from conducting the following
activities
on the property:
6.1
repairing motor vehicles;
6.2
servicing motor vehicles;
6.3
otherwise attending to work on motor vehicles;
6.4 any
activities that result in the discharge of oil onto the property; and
6.5 any
activities allied to those in sub-paragraphs 6.1 – 6.4.
7.
The first and second respondents are ordered to take all steps
necessary
to restore the property to the condition it was in before
the illegal activities commenced at the property and the unlawful
structures
were erected at the property, including, but not limited
to:
7.1
removing all litter and waste;
7.2
removing all motor vehicles and vehicle parts;
7.3
attending to clean up and remedy all oil spillages and related
environmental pollution on the property.
8.
It is ordered that the first and second respondents are to report to
the
applicant in writing on what steps it has taken pursuant to this
order within 30 calendar days of the grant of this order.
9.
If the first and second respondents fail to comply with the order in
paragraph
7 above to the reasonable satisfaction of the applicant,
the applicant is authorised to:
9.1 enter
onto the property;
9.2 attend
to the remediation work outlined in paragraph 7 above or any further
remediation work reasonably required;
9.3 claim
from the first and second respondents, jointly and severally, the one
paying the other to be absolved, the
fair and reasonable costs
incurred in effecting such remediation;
9.4 set the
matter down, on the same papers supplemented as may be necessary, for
a money judgment against the first
and second respondents to recover
the costs contemplated in paragraph 9.3 above.
10.
The first and second respondents are ordered to take all steps
reasonably necessary
to prevent the property being used for the
purposes in paragraphs 1.1 – 1.5 above and to prevent the
unlawful erection of
structures and / or buildings on the property,
which steps must include fencing the property or taking other steps
to ensure vagrants
and other persons cannot readily access the
property.
11.
The first and second respondents are ordered to pay the costs of the
application,
jointly and severally, the one paying the other to be
absolved, such costs to include the costs incurred by the applicant
in procuring
the reports of Mr Bundy and Mr Mendes.
JUDGMENT
Koen J
[1]
Ownership
is a conglomeration of rights and obligations. The rights include
inter alia the right to possession of the res owned,
the right to use
it, the right to hypothecate it, etc. But an owner of a res not only
has rights, but also obligations. Thus, at
common law, an owner may
not use property in a manner that causes harm to others. In the case
of immovable property an entire body
of law, commonly referred to as
nuisance or neighbour law, has developed, which seeks to regulate the
use of immovable property
to protect the rights of neighbouring
owners and occupiers. As urban areas developed, the need for the
additional regulation of
the development and use of immovable
properties came to be recognized. Laws have accordingly been enacted,
at various levels of
government, to regulate the development and use
of properties. These laws include, for example, the National Building
Regulations
and Building Standards Act 103 of 1977 (the Building Act)
regulating improvements to be effected on immovable property; the
National
Environmental Management Act 107 of 1998 (NEMA) guarding
against environmental degradation of land; and the applicant’s
Spatial
Planning and Land Use Management (SPLUMA) By-Law
[1]
and Problem Buildings By-Law
[2]
and the applicant’s local municipality town planning scheme
(the scheme),
[3]
which permit
only certain uses of certain property according to their zoning.
[2]
The first and second respondents (collectively referred to as ‘the
respondents’) are the registered owners of the immovable
property described as Erf [....] Stanger (KwaDukuza), situate
at [....] K [....] G [....] Road, KwaDukuza (the property).
[3]
The applicant maintains that the respondents have contravened
provisions
of: the Building Act, in having buildings on the property
without approved plans, alternatively in having allowed the buildings
on the property to fall into disrepair and to become dilapidated;
NEMA in permitting pollution and degradation of the property;
and the
SPLUMA By-Law, the Problem Buildings By-Law, and the scheme in
permitting the property to be used contrary to the zoning
applicable
to the property.
[4]
It accordingly brought an application against: the respondents; Elite
Cars, which conducted business on the property, as the third
respondent; and unidentified unlawful occupiers of the property, as
the fourth respondent, seeking the following relief, as set out in
its notice of motion:
‘
1. It is declared
that it is unlawful for the respondents or any person to conduct the
following activities at the property more
fully described as Erf
[....] Stanger (KwaDukuza) at [....] K [....] G [....]
Road, KwaDukuza (“the property”):
1.1 repairing motor
vehicles;
1.2 servicing motor
vehicles;
1.3 otherwise attending
to work on motor vehicles;
1.4 any activities that
result in the discharge of oil onto the property; and
1.5 any activities allied
to those in sub-paragraphs 1.1 – 1.4.
2. It is declared that
all immovable structures on the property are unlawful in that no
building plans have been submitted for those
structures.
3. It is declared that it
is unlawful to dump waste, litter and other items on the property or
to permit such items to be dumped
and/or stored at the property.
4. In respect of all
built immovable structures on the property, the first and second
respondents are ordered to take the steps
envisaged by Section 12 of
the National Building Regulations and Building Standard Act, 1977
namely, to demolish those built immovable
structures within 30 days
of the grant of this order.
5. In the first and
second respondents fall to comply with the order in paragraph 4 above
within the specified time period, the
applicant is authorised to:
5.1 enter onto the
property;
5.2 demolish all built
immovable structures on the property;
5.3 claim from the first
and second respondents, jointly and severally, the one paying the
other to be absolved, the fair and reasonable
costs incurred in such
demolition;
5.4 set the matter down,
on the same papers supplemented as may be necessary, for a money
judgment against the first and second
respondents to recover the
costs contemplated in paragraph 5.3 above,
6. The respondents are
interdicted from conducting the following activities on the property:
6.1 repairing motor
vehicles;
6.2 servicing motor
vehicles;
6.3 otherwise attending
to work on motor vehicles;
6.4 any activities that
result in the discharge of oil onto the property; and
6.5 any activities allied
to those in sub-paragraphs 6.1 – 6.4.
7. The first and second
respondents are ordered to take all steps necessary to restore the
property to the condition it was in before
the illegal activities
commenced at the property and the unlawful structures were erected at
the property, including, but not limited
to:
7.1 removing all litter
and waste;
7.2 removing all motor
vehicles and vehicle parts;
7.3 attending to clean up
and remedy all oil spillages and related environmental
pollution on the
property;
7.4 report to the
applicant in writing on what steps it has taken pursuant to this
order within 30 calendar days of the grant of
this order.
8. If the first and
second respondents fail to comply with the order in paragraph 7 above
to the reasonable satisfaction of the
applicant, the applicant is
authorised to:
8.1 enter onto the
property;
8.2 attend to the
remediation work outlined in paragraph 7 above or any further
remediation work reasonably required;
8.3 claim from the first
and second respondents, jointly and severally, the one paying the
other to be absolved, the fair and reasonable
costs incurred in
effecting such remediation;
8.4 set the matter down,
on the same papers supplemented as may be necessary, for a money
judgment against the first and second
respondents to recover the
costs contemplated in paragraph 8.3 above.
9. The first and second
respondents are ordered to take all steps reasonably necessary to
prevent the property being used for the
purposes in paragraphs 1.1 –
1.5 above and to prevent the unlawful erection of structures and / or
buildings on the property,
which steps must include fencing the
property or taking other steps to ensure vagrants and other persons
cannot readily access
the property.
10. Subject to paragraph
11 below, all persons using or occupying the property for the
purposes set out in paragraphs 1.1 to 1.5
are ordered to vacate the
property within 14 calendar days of service of this order.
11. Service on the fourth
respondent shall be by publishing this order in English and Isizulu
in a newspaper circulating in the
area of the property and by placing
a copy of this order on a structure on the property and the 14 days
shall run from the date
of publication in the newspaper or placing on
the structure, whichever is later.
12. The removal forthwith
of any vehicles parked on a public road, which in the opinion of a
traffic officer referred to in the
Road Traffic Act, is likely to
cause danger or obstruction to other traffic on such public road.
13. The first and second
respondents, and any other respondent opposing the relief sought, are
ordered to pay the costs of the application,
jointly and severally,
the one paying the other to be absolved, such costs to include the
costs incurred by the applicant in procuring
the reports of Mr Bundy
and Mr Mendes as set out in the founding affidavit.
14. Such further and/or
alternative relief as this Honourable Court may deem appropriate.’
[5]
On 1 October 2020 an order was granted with the approval of
the first and second respondents against the third and fourth
respondents, which order: identified twenty four
of the unlawful occupiers by name and joined them as the fifth to
twenty-eighth
respondents to the application; granted the relief in
paragraphs 1, 3, 6, 10, 11 and 12 of the notice of motion against the
third
to twenty eighth respondents; adjourned the relief sought
against the first and second respondents
sine
die;
and reserved all issues relating
to costs.
[6]
The applicant now seeks an order, essentially as contained in the
notice
of motion, against the respondents.
[7]
The application is opposed by the respondents on a number of grounds:
they deny the applicant’s allegation that there are no building
plans in respect of the buildings on the property, or that
the
buildings have fallen into a state of disrepair and are unsafe or
derelict; they deny that the site is covered in detritus
and
that noxious liquid waste is discharged or has been discharged in an
uncontrolled manner on the property; they deny that the
predominant
use of the property, namely unregulated vehicle repair, is
impermissible given the zoning of the property; and finally,
they
contend that any order granted will be ineffective as it simply will
seek to achieve what the order granted against the third
and fourth
respondents already provides for, and which, despite attempts at
enforcement, have apparently not achieved the cessation
of the
activities on the property, the respondents having lost control over
their property. There is also a complaint that the
affidavits were
exchanged some time ago and that there's no evidence before the court
as to the current prevailing factual position.
[8]
It is convenient to start with the last point. By
the very nature of litigation, decisions are made and appeals decided
often years
after the litigation commenced, on the factual position
prevailing at the time that the affidavits were exchanged. Where
conditions
have changed and such change is material to the outcome of
an application, leave must be obtained if required, for further
affidavits
to be filed. In the present matter, a supplementary
founding affidavit was filed by the applicant to amplify the
allegations in
the founding affidavit, before the answering affidavit
was filed. If there was a material change in circumstances which
could affect
the outcome of the application thereafter, then it was
incumbent on the respondents to have adduced such evidence. The
respondents
have not done so. The application shall accordingly be
decided on the allegations contained in the affidavits.
[9]
It is common cause, or at least not seriously in
dispute that: there are three structures on the property, which are
identified
in the founding affidavit as the ‘main building’,
‘eastern building’ and ‘northern building’.
Furthermore, the photographs in the founding affidavit depict these
buildings, the property and activities conducted on the property,
being informal vehicle repairs, which is consistent with the broken
down cars, litter and oil and/or solvents pollution visible
on the
photographs.
[10]
The respondents however contend at the outset that their denials: of
the applicant’s
allegations that no plans exist in respect of
the structures on the property; of the use to which the property has
been put requiring
remediation; and the property being used contrary
to its zoning, give rise to irresoluable disputes of fact which
preclude final
relief being granted on the affidavits.
[11]
It is trite law that a mere denial of allegations in a founding
affidavit does not preclude
the granting of final relief. There must
be a real, genuine and bona fide dispute of fact.
[12]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd
[4]
Heher JA having referred to the formulation of the test for a real,
genuine and bona fide dispute of fact in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[5]
said:
‘
[13] A real,
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports to raise
the dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed. There will of course be instances
where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more can therefore
be expected of him.
But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party
and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing
party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true
or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally
have difficulty in
finding that the test is satisfied. I say
“generally” because factual averments seldom stand apart
from a broader matrix
of circumstances all of which needs to be borne
in mind when arriving at a decision. A litigant may not necessarily
recognise or
understand the nuances of a bare or general denial as
against a real attempt to grapple with all relevant factual
allegations made
by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and
will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser
who settles an answering affidavit to ascertain and engage
with facts which his client disputes and to reflect such disputes
fully
and accurately in the answering affidavit. If that does not
happen it should come as no surprise that the court takes a robust
view of the matter
.'
[13]
In the founding affidavit of the applicant, the deponent, the
‘Director: Development
Enforcement’ of the applicant
states that:
‘
According to the
applicant’s records there are no building plans submitted or
approved by the municipality for those structures
on the property.
The structures are dilapidated and dangerous. Business is conducted
there in contravention of the town planning
scheme. In particular,
motor vehicle repair takes place there. This
appears to result in the discharge of oil into the local soil and
hydrology with significantly
adverse environmental consequences.’
[14]
In the answering affidavit the response of the
first respondent is as follows:
‘
The
allegations contained herein are denied. The allegations are contrary
to the Municipality’s own records. I refer to Annexure
“B”
of the founding affidavit which sets out the authorised uses of the
Property.’
The answering affidavit
then continues to deal with the permitted uses reflected in annexure
“B” to the founding affidavit,
being the zoning
certificate in respect of the property, and concludes with a
statement that motor vehicle repairs fall under one
or more of the
categories of ‘service station’, ‘industrial sales
and service’, or ‘workshop’,
which do not require
any special approval or consent.
[15]
The
respondents’ response does not give rise to a real, genuine or
bona fide dispute on the affidavits as regards the non
existence of
building plans in respect of all the buildings on the property.
[6]
If the respondents contend that the applicant’s allegation that
there are no plans was incorrect, that is a denial of a negative,
in
other words conveying that there are plans in respect of the
buildings, then they should have produced those plans, or other
evidence to prove that the plans exist.
[16]
Further, the relevant part of s 12 of the Building Act provides:
‘
(1) If the local
authority in question is of the opinion that –
(a)
any building is dilapidated or in a state of disrepair or shows signs
thereof;
(b)
any building or the land on which a building was or is being or is to
be erected or any earthwork is dangerous
or is showing signs of
becoming dangerous to life or property, it may by notice in writing,
served by post or delivered, order
the owner of such building, land
or earthwork, within the period specified in such notice to demolish
such building or to alter
or secure it in such manner that it will no
longer be dilapidated or in a state of disrepair or show signs
thereof or be dangerous
or show signs of becoming dangerous to life
or property or to alter or secure such land or earthwork in such
manner that it will
no longer be dangerous or show signs of becoming
dangerous to life or property: Provided that if such local authority
is of the
opinion that the condition of any building, land or
earthwork is such that steps should forthwith be taken to protect
life or property,
it may take such steps without serving or
delivering such notice on or to the owner of such building, land or
earthwork and may
recover the costs of such steps from such owner.’
[17]
The
respondents are accordingly in breach of the Building Act. Where the
conduct of a respondent amounts to a violation of a statutory
provision the continued violation of the statute should not be
allowed.
[7]
[18]
That means
that the buildings on the property are unlawful and should be
demolished.
[8]
No evidence has
been adduced to found any possible alternative just and equitable
remedy being granted.
[9]
In the
light of that conclusion it is strictly unnecessary to inquire into
the state of the buildings. But if required, I would
have no
hesitation based on what is shown on the photographs and contained in
the report of Mr Mendes (Pr. Eng.) to have concluded
that they are
dilapidated and structurally unsound as contemplated in s 12 of the
Building Act,
[10]
and that
this has not been remedied despite demand in terms of the Building
Act. The material findings in Mr Mendes’ report
speak for
themselves. As they were not seriously disputed, they are not
repeated herein.
[19]
As regards
the pollution of the site,
the
photographs speak for themselves and display accumulated rubble and
rubbish and soil patently discoloured by the discharge of
pollutants,
probably oil from vehicles being serviced on the property. The latter
is not simply a fanciful suspicion but a well-grounded
reasonable
apprehension supported by the photographic evidence showing various
vehicles in various states of disrepair with bonnets
open to allow
work to the engine compartments, on the property. This fact is also
supported by the report of the expert, Mr Bundy.
Although he had not
done any scientific soil sample analysis, he expressed the view based
on his expertise, knowledge and experience
that there would be
unlawful contamination.
[11]
Obviously the extent of any remediation required to restore the soil
to its non-polluted state, might require soil samples to be
taken and
analyzed, and if remediation is not indicated, no remediation might
be required. On the affidavits however the prima
facie inference of
pollution and environmental degradation of the property has not been
countered by any evidence in rebuttal.
Indeed, the relief granted
previously against the other respondents was not opposed by the
respondents, and accordingly the allegations
of contamination are
conclusive for the purposes of this application.
[20]
Section
28(1) and (2) of NEMA imposes
upon
an owner ‘an obligation to take reasonable measures’
where a situation exists that ‘has caused or may cause
significant pollution or degradation of the environment’ and
such reasonable measures must ‘minimise and rectify such
pollution or degradation.’ In addition, the applicants Problem
Buildings By-Law provides that an owner may be required to
‘remove
all refuse from, such problem building and ‘dispose of, destroy
or remove any material or article accumulated,
dumped, stored or
deposited in any building/premises, which is refuse or waste and
which is showing signs of becoming unsightly,
insanitary, unhealthy
or objectionable or is likely to constitute an obstruction’.
[12]
[21]
Despite demand to correct this state of affairs,
t
he
respondents have failed to do so. Such
contravention must be interdicted, with suitable consequential
relief.
[22]
As
regards
the zoning complaint, s 41(1) of SPLUMA By-Law
[13]
provides that the ‘land use scheme provides for land use and
development rights and has the force of law and is binding on
the
Municipality, all other persons and organs of state’. It is not
disputed that motor vehicle repairs are conducted on
the property.
The photographs certainly suggest irresistibly that this is done in
an unstructured informal manner. The zoning certificate
relating to
the property is clear. The property is zoned INLI2 (light industry).
Clause 9 of the zoning certificate deals with
permitted uses. A
‘vehicle repair shop’ is not a permitted use under the
light industry category.
[14]
[23]
The respondents argued that such use does not offend against the
zoning of the property, as clause 9 of the zoning
certificate permits a commercial workshop, a service station and a
workshop, which
they contend is what is being carried out on the
property.
These uses are all
defined in the scheme.
[24]
A
‘commercial workshop’ is defined in the scheme as
[15]
‘
a
light industrial building wherein the primary purpose is the selling
of goods or services by retail and where the processes are
operated
specifically in conjunction with a shop or office to which the
public, as customers has access. It includes such uses
as a watch
repairer, shoe repairer, radio/television repairer, computer
repairer, electrician and may include a jobbing a printer,
but
excludes a garage or service station.’
[25]
A
‘service station’, as per the scheme requires the sale of
petroleum and related products and although it permits running
repairs of a minor nature, lubricating and greasing and washing and
cleaning it ‘not include panel beating, spray painting
or the
carrying out of body repair work, or repairs of a major nature to the
engine or transmission system thereof.’
[16]
[26]
A
‘workshop’, as defined in the scheme, requires premises
available for the creation, assemblage, and/or repair of artefacts,
using hand-powered and table-mounted electrical machinery, and
including their retail sale.’
[17]
[27]
The
motor repairs conducted on the property are
not ‘in conjunction with a shop or office. . .’ Indeed,
there is no evidence
of any ‘shop or office’ on the
property. Accordingly, the activities conducted on the property
cannot qualify as a
commercial workshop.
[28]
There is also no evidence of ‘the sale of
petroleum and related products.’ The sale of petroleum and
related products
will require compliance with strict regulations in
terms of the
Petroleum Products Act 120 of 1977
. The car repairs are
accordingly not effected as part of operating a ‘service
station.’
[29]
There is also
no evidence of any ‘retail
sale’ of ‘artefacts’, which is required for the
usage to qualify as that of ‘a
workshop.’
[30]
Not only
is
the use of the property in contravention of the applicant’s
municipality scheme,
[18]
but
it is also in contravention of the SPLUMA By-Law. Such contraventions
must be met with an interdict.
[19]
[31]
The
respondents’ attitude has been one of
abdicating their primary responsibility as landowners to the
applicant. The fact that
an order had been granted against the
remaining respondents cannot preclude an order being sought against
the respondents as land
owners to comply with their obligations in
terms of the relevant legislation. In any event, the relief claimed
in respect of the
demolition of the buildings, is relief not sought
and not competent against the remaining respondents and justified
this application
being brought in its own right.
[32]
The
applicant was substantially successful and
there's no reason why it should not be entitled to the cost of the
application. The reports
of Mr Bundy and Mr Mendes were necessary and
should be paid by the respondents.
[33]
It
follows that the following relief, which was
the relief persisted with by the applicant, save that I have extended
the time limit
for performance in paragraph 4 below, should be
granted:
1.
It is declared that it is unlawful for the respondents or any person
to
conduct the following activities at the property more fully
described as Erf [....] Stanger (KwaDukuza) at [....] K
[....] G [....] Road, KwaDukuza (“the property”):
1.1
repairing motor vehicles;
1.2
servicing motor vehicles;
1.3
otherwise attending to work on motor vehicles;
1.4 any
activities that result in the discharge of oil onto the property; and
1.5 any
activities allied to those in sub-paragraphs 1.1 – 1.4.
2.
It is declared that all immovable structures on the property are
unlawful
in that no building plans have been submitted for those
structures.
3.
It is declared that it is unlawful to dump waste, litter and other
items
on the property or to permit such items to be dumped and/or
stored at the property.
4.
In respect of all built immovable structures on the property, the
first
and second respondents are ordered to demolish those built
immovable structures within 40 days of the grant of this order.
5.
If the first and second respondents fall to comply with the order in
paragraph
4 above within the specified time period, the applicant is
authorised to:
5.1 enter
onto the property;
5.2 demolish
all built immovable structures on the property;
5.3 claim
from the first and second respondents, jointly and severally, the one
paying the other to be absolved, the
fair and reasonable costs
incurred in such demolition;
5.4 set the
matter down, on the same papers supplemented as may be necessary, for
a money judgment against the first
and second respondents to recover
the costs contemplated in paragraph 5.3 above,
6.
The respondents are interdicted from conducting the following
activities
on the property:
6.1
repairing motor vehicles;
6.2
servicing motor vehicles;
6.3
otherwise attending to work on motor vehicles;
6.4 any
activities that result in the discharge of oil onto the property; and
6.5 any
activities allied to those in sub-paragraphs 6.1 – 6.4.
7.
The first and second respondents are ordered to take all steps
necessary
to restore the property to the condition it was in before
the illegal activities commenced at the property and the unlawful
structures
were erected at the property, including, but not limited
to:
7.1 removing
all litter and waste;
7.2 removing
all motor vehicles and vehicle parts;
7.3
attending to clean up and remedy all oil spillages and related
environmental pollution on the property.
8.
It is ordered that the first and second respondents are to report to
the
applicant in writing on what steps it has taken pursuant to this
order within 30 calendar days of the grant of this order.
9
If the first and second respondents fail to comply with the order
in
paragraph 7 above to the reasonable satisfaction of the applicant,
the applicant is authorised to:
9.1 enter
onto the property;
9.2 attend
to the remediation work outlined in paragraph 7 above or any further
remediation work reasonably required;
9.3 claim
from the first and second respondents, jointly and severally, the one
paying the other to be absolved, the
fair and reasonable costs
incurred in effecting such remediation;
9.4 set the
matter down, on the same papers supplemented as may be necessary, for
a money judgment against the first
and second respondents to recover
the costs contemplated in paragraph 9.3 above.
10.
The first and second respondents are ordered to take all steps
reasonably necessary to prevent the
property being used for the
purposes in paragraphs 1.1 – 1.5 above and to prevent the
unlawful erection of structures and
/ or buildings on the property,
which steps must include fencing the property or taking other steps
to ensure vagrants and other
persons cannot readily access the
property.
11.
The first and second respondents are ordered to pay the costs of the
application, jointly and severally,
the one paying the other to be
absolved, such costs to include the costs incurred by the applicant
in procuring the reports of
Mr Bundy and Mr Mendes.
KOEN
J
APPEARANCES
For
the applicant:
Mr
P Wallis SC
Instructed
by:
Livingstone
Leandy
c/o
Stowell and Co
Pietermaritzburg
(Ref:
P Firman)
For
the first and second respondents:
Ms
KK Hennessy
Instructed
by:
Lockhat
Mayat Attorneys
c/o
Grant and Swanepoel
Pietermaritzburg
(Ref:
M Swanepoel)
[1]
Published in Municipal Notice 106 in
KwaZulu-Natal
Provincial Gazette
2002 of 27 September 2018, and the short title is the
KwaDukuza
Municipality Planning and Land Use Management By-Law, 2016
.
[2]
Published in Provincial Notice 72 in
KwaZulu-Natal
Provincial Gazette
2089 of 13 June 2019, and the short title is
the
KwaDukuza Municipality: Problem Building By-Law, 2018
.
[3]
KwaDukuza Local Municipality Scheme, adopted by the council of the
applicant on 26 June 2018 per council resolution C1006, with
effective date 1 September 2018. The scheme has been replaced
subsequently by the scheme adopted September 2021, and available
on
the KwaDukuza Municipality’s Webpage:
http://www.kwadukuza.gov.za/index.php/bylaws/routedownload/land-use-21
(Accessed: 14 March 2023).
[4]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
2008 (3) SA 371 (SCA).
[5]
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E – 635C.
[6]
See also
Nelson
Mandela Metropolitan Municipality v Greyvenouw
CC 2004 (2) SA 81 (SE).
[7]
Nelson
Mandela Metropolitan Municipality v Greyvenouw
CC
2004 (2) SA 81
(SE);
Bitou
Local Municipality v Timber Two Processes CC and another
2009
(5) SA 618 (C).
[8]
Lester
v Ndlambe Municipality and another
[2013] ZASCA 95, 2015 (6) SA 283 (SCA), [2014] 1 All SA 402 (SCA).
[9]
See
Bitou
Local Municipality v Timber Two Processes CC and another
2009
(5) SA 618
(C)
.
[10]
Section 12 of the Building Act provides:
‘
If
the local authority in question is of the opinion that –
(a)
any building is dilapidated or in a state
of disrepair or shows signs thereof;
(b)
any building or the land on which the
building was or is being or is to be erected or any earthwork is
dangerous or showing signs
of becoming dangerous to life or
property,
it
may by notice in writing, served by post or delivered, order the
owner of such boring, land or earthwork, within the period
specified
in such notice to to demolish such building or to alter or secure it
in such manner that it will no longer be dilapidated
or in a state
of disrepair or show signs thereof or be dangerous or show signs of
becoming dangerous to life or property or to
alter or secure such
land or earthwork in such manner that it will no longer be dangerous
or show signs of becoming dangerous
to life or property . . .’
[11]
See also
S
v Haarburger
2002 (1) SACR 542
(C) paras 20 to 21, where there was also not
scientific evidence that the nuisance complained of, in that
instance excessive
noise levels, was relied upon.
[12]
See s 8(a)(1) and 8(a)(5) of the
KwaDukuza
Municipality: Problem Building By-Law, 2018.
[13]
KwaDukuza Local Municipality Spatial Planning And Land Use
Management By-Law.
[14]
See
the KwaDukuza Local Municipality Scheme, September 2021 at 132ffg
and 136ffg.
[15]
See
the KwaDukuza Local Municipality Scheme, September 2021 at 226.
[16]
See
the KwaDukuza Local Municipality Scheme, September 2021 at 229 –
230.
[17]
See
the KwaDukuza Local Municipality Scheme, September 2021 at 236.
[18]
Ie the
KwaDukuza
Local Municipality Scheme, September 2021.
[19]
Huisamen
& Others v Port Elizabeth Municipality
1998 (1) SA 477
(ECD) at 483I-484B.