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[2023] ZAKZPHC 112
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Kwadukuza Municipality v Stangvest Investments (Pty) Ltd and Others (AR134/22) [2023] ZAKZPHC 112 (16 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
Case no. AR134/22
In
the matter between:
KWADUKUZA
MUNICIPALITY
APPELLANT
and
STANGVEST
INVESTMENTS (PTY) LTD
FIRST RESPONDENT
JABULA
HARDWARE
SECOND RESPONDENT
LUQMAAN
DHOOMA
THIRD RESPONDENT
YUNOOS
DHOOMA
FOURTH RESPONDENT
BIKRUM
SINGH
FIFTH RESPONDENT
JUDGMENT
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives by email. The date and time for
hand-down is deemed to be 14h00 on 16 October 2023.
Chetty
J (Balton and Vahed JJ concurring)
[1]
The interpretation of town planning schemes frequently gives rise to
disputes as to
whether the uses of designated erven are permitted by
municipal authorities. This is one such case. The KwaDukuza
Municipality,
the appellant herein, approached the High Court on an
urgent basis to interdict Stangvest Investments (Pty) Ltd, being the
owner
of Erf 981, CBD Stanger, ('Stangvest') and Jabula Hardware, the
tenant of the property, ('Jabula') on the basis that either or both
were causing or permitting a contravention of the KwaDukuza Land Use
Management Scheme ('the Scheme') in circumstances where Jabula
began
using Erf 981 as a 'hardware store' where such use was considered to
be prohibited in terms of the relevant zoning controls.
Kruger J
dismissed the application, as well as the application for leave to
appeal. The matter serves before this court following
the granting of
special leave by the Supreme Court of Appeal ('the SCA').
[2]
By way of background, the KwaDukuza Municipality ('the
municipality'), acting in its
capacity both as owner of public
property and the enforcement authority of the Scheme and the National
Building Regulations and
Building Standards Act 103 of 1977 ('NBR
Act'), contended that Jabula was using a portion of an adjoining
property, Erf 3108, CBD
Stanger to off-load and store building
materials. This property belongs to the municipality and is used as a
public parking space.
It abuts the property owned by Stangvest.
[3]
In addition, the municipality contended that Jabula had effected
certain alterations
to the building on Erf 981, without the approval
of building plans. Accordingly, it was submitted that Jabula had
contravened the
NBR Act and that its continued occupation of the
property in the absence of a certificate of occupation was unlawful.
Consequently,
it maintained that it was entitled to an order for
Jabula's eviction from the property.
[4]
The facts are that Stangvest let the premises on Erf 981 in August
2019 to Jabula
for a period of five years for the purpose of
conducting a hardware store. The agreement was concluded by Mr
Jayaram Singh and
Mr Yunoos Dhooma, in their respective capacities as
directors of Stangvest and Dhooma Supermarket CC, which traded as
Jabula.
[1]
The premises adjacent
to the hardware store house the businesses of a bottle store and a
large supermarket, respectively. It would
stand to reason that the
customers and patrons of all of these businesses use the public
parking on Erf 3108. According to the
municipality, the supermarket
uses the bulk of the parking lot on Erf 3108 in accordance with a
deferred parking payment mechanism.
[2]
[5]
Shortly after taking possession of Erf 981, Jabula, in and around
September 2019,
commenced business as a hardware store. It is common
cause that both properties in question, Erf 981 and Erf 3108, fall
under the
Scheme as contemplated in the Spatial Planning and Land Use
Management Act 16 of 2013 ('SPLUMA'). In terms of the Scheme, Erf 981
is zoned Mixed Core Use 3 ('MUG 3'). The zoning certificate reflects
that MUG 3 sites are intended for retail activities and 'related
commercial uses at high intensities that comprise a town centre'. The
'free uses' permitted in MUG 3 include that of a 'shop'.
All uses
other than those listed as free or permitted by consent of the
municipality, are prohibited. A hardware store falls under
neither
category - neither free nor available through consent. Clause 5.2.4
of the Scheme defines a
'shop'
as a:
'...
building or land used for the selling of goods and appliances;
services such as a hairdresser, ticket agency and video hire;
showroom (including motor showroom restricted to the display and sale
of vehicles only); .... but does not include an industrial
building,
garage, service station, milk depot, hotel, funeral parlour, casino
and betting depot/totaliser.'
[6]
The contention of the municipality in the court
a quo
and
before this court is that Jabula's use of Erf 981 as a hardware store
is in contravention of the Scheme. The contention that
the hardware
store also operated on Erf 3108 is unsubstantiated and was not
persisted with. The inspection of Jabula's premises
by three
municipal officials - a building inspector; the Director: Development
Enforcement (the deponent to the founding affidavit)
and the
Director: Building Control - all describe the activity on Erf 981 as
constituting the operation of a hardware store. The
officials took
the view that such use was unlawful and contravened SPLUMA. Their
observations of Erf 3108 revealed that part of
the public parking
area had been taken over by Jabula as a builder's yard for the
delivery and storage of building materials. The
photographs relied on
in support of this contention show the presence of a number of trucks
parked in the public parking, some
bearing the name of Jabula
Hardware. Others appear to be those of merchandisers making
deliveries or customers collecting goods.
One photograph shows the
use of a forklift in the process of offloading timber from a truck
bearing the name of Jabula Hardware.
[7]
The municipality's officers issued contravention notices to the third
respondent,
who was present at the store at the time of the
inspections. The building inspector further concluded that 'part of
the building
(on Erf 981) had been converted by demolishing internal
walls'. The Director: Development Enforcement was of the opinion that
these
alterations required building plan approval in terms of the NBR
Act. As no record of such plans could be found, nor had any
application
in respect thereof been received, such alterations were
considered to be 'illegal building works'.
[8]
The aforementioned inspections generated a written demand on 20
November 2019 from
the municipality's attorneys calling on Stangvest
and Jabula to cease the usage of Erf 3108 and Erf 981 in
contravention of SPLUMA
and the Scheme. In essence, the contention of
the municipality is that the respondents were using Erf 981 as a
hardware store,
a use not permitted in terms of the Scheme for a
property zoned MUC 3. As a hardware store finds no definition in
terms of the
Scheme, the municipality appears to have settled for the
categorisation of Jabula's use of the premises as a
'builder's
supply yard'
,
defined as 'premises which is used for the storage or sale of
building material and equipment'.
[3]
The municipality contends that the only reasonable interpretation of
the business conducted on Erf 981 is that of the storage and
sale of
building materials, a use prohibited in terms of the Scheme.
[9]
Insofar as the alteration of the building on Erf 981 is concerned,
the founding affidavit
alleges that this constitutes an 'erection' as
defined in the terms of the NBR Act,
[4]
and as no building plans were submitted,
[5]
there can be no occupation of the building unless and until a
certificate of occupancy has been issued by the local authority.
[6]
[10]
The last aspect of the relief pertains to Jabula's use of Erf 3108.
The photographs which accompany
the founding affidavit leave little
doubt that Jabula effectively appropriated part of the public parking
lot as a builder's supply
yard, storing ceramic tiles, bags of
cement, timber and a host of other building materials. There is no
dispute that they did so
without any permission or authority from the
municipality.
[11]
The municipality turned to the court a quo on an urgent basis
contending that an interdict
was the only 'fast, enforceable remedy
that actually works'. In doing so, it by-passed the other enforcement
mechanisms provided
for in the Scheme. The relief, set out in the
notice of motion, sought a
rule nisi
in the following terms:
'2.
…
.
(a)
That the respondents are interdicted and restrained from using or
permitting
to be used the property or any part of the property known
as Erf 981, CBD Stanger, also known as 1 King Shaka Street, KwaDukuza
as:
(i)
A hardware store; or
(ii)
A builder's supply yard; or
(iii) In any way in
conflict with the zoning of the property for Mixed Core Use 3 in
terms of the KwaDukuza Land Use Management
Scheme;
(b)
That the respondents are interdicted and restrained from using or
permitting
to be used the property or any part of the property known
as Erf 3108, CBD Stanger, from being used:
(i)
For the parking of any vehicle other than a light motor vehicle;
or
(ii)
For the offloading or loading of trucks; or
(iii)
For the stacking or storing, even on a temporary basis of any goods
or materials;
or
(iv)
As part of a hardware store business, or
(v)
As a builder's supply yard; or
(vi)
In any way in conflict with the zoning of the property for Mixed Core
Use 3
in terms of the KwaDukuza Land Use Management Scheme;
(c)
That, within five days of service of this order upon any respondent,
such respondent
is directed to cause all buildings and other material
stockpiled or left on Erf 3108, CBD Stanger to be removed, failing
which
the sheriff is directed to attach such materials or goods on
Erf 3108 and the applicant is authorised to remove and store
materials
or goods so attached pending the final determination of
this application or further directions by this court;
(d)
That the respondents are directed to vacate, or cause to be vacated,
the property described
as Erf 981, CBD Stanger, also known as1 King
Shaka Street, KwaDukuza, and not to permit the occupation thereof
until or unless
a certificate of occupancy, issued after 1 October
2019, as required by section 14 of the National Building Regulations
Act and
Building Standards Act, 103 of 1977, permitting such
occupation may have been issued;
(e)
That the costs of this application shall be paid by the respondents
jointly and severally,
if unopposed, on the attorney and client
scale, such to include the costs of senior or two counsel, where
employed; and if opposed
shall be paid by any party which
unsuccessfully opposes the application, on the attorney and client
scale, such to include the
cost of senior or two counsel, where
employed.
3
THAT
the relief in paragraphs 2(a), (b), (c) and (d) above shall operate
as interim relief, with immediate effect, pending the return
day
hereof.
4.
Further
and/or alternative relief.'
[12]
Stangvest, despite the short notice, delivered a preliminary
answering affidavit. It contends
that the fifth respondent, Bikrum
Singh, is one of fourteen directors of Stangvest. There is nothing to
gainsay this or to suggest
that he is a 'controlling mind' of the
first respondent, as alleged. On that basis, there was no need to
join him in these proceedings
in his personal capacity. The only
basis for the appellant maintaining that the fifth respondent was
properly cited is because
the fourth respondent (against whom the
application was withdrawn) pointed to the fifth respondent as being
the 'owner of the property'.
This remained the high-water mark of its
claim against the fifth respondent, even on appeal. This aspect ought
not to detain this
court any further as I am satisfied that there was
no reason for the fifth respondent to have been drawn into these
proceedings.
[13]
The thrust of Stangvest's opposition is that the municipality has
acted unevenly and selectively
in applying the enforcement of the
Scheme to Jabula while another hardware store (Singh's Hardware) has
been allowed to operate
without hindrance in a MUC 3 zone. The
premises on Erf 981, presently occupied by Jabula, were previously
occupied by another hardware
store, PAK Hardware. Stangvest points
out that the public parking space on Erf 3108 is often used by the
Checkers supermarket (located
adjacent to Erf 981) in December to
house large refrigeration units, without demur from the municipality.
Stangvest denies that
any 'erections' have taken place to the
building that warrant building plans, and consequently deny that this
warrants an application
for a new occupation certificate. Ultimately,
it contends that the municipality has acted
mala fide
and for
an ulterior motive in seeking to harass Jabula, while allowing
another hardware store to operate without hindrance.
[14]
Jabula's response to the application is that it stored building
materials on Erf 3108 in the
mistaken belief that it was allowed to.
It admits to having used Erf 3108 in contravention of the Scheme.
Once this was brought
to its attention and the contravention notices
were issued, it responded immediately. The immediacy of its
compliance to the contravention
notices was placed in dispute.
Arrangements were made to relocate all of the materials stored on Erf
3108 into a storeroom located
below the hardware shop. According to
Jabula, by 26 November 2019 it completed the transition and
thereafter did not use Erf 3108
for the stockpiling of goods.
Accordingly, it contends that no basis exists for the relief sought
in prayer 2
(b)
and
(c)
of the notice of motion as the
conduct complained of had long since abated.
[15]
To the extent that it is alleged to have contravened the Scheme by
operating a hardware store
from Erf 981, Jabula denies this and
contends that a 'shop' is a permitted use in terms of the Scheme and
disputes the imputation
that it operates a 'builder's supply yard'.
The photographs attached to Stangvest's opposing affidavit depict a
typical hardware
store, with rows of steel shelving containing
various building items including paint, sanitary ware and
waterproofing materials.
In any event, it contended that the building
in question from which it operates can by no means be construed as a
'yard', suggestive
that this applies to an open space, under the open
sky. It accordingly denies that there is any basis for the relief
sought in
prayer 2
(b)
of the notice of motion.
[16]
Insofar as the municipality contends that Jabula has effected
building renovations on Erf 981,
Jabula denies this. It admits to
removing a portion of one wall which was non-structural and making
only cosmetic changes to the
premises. In this respect, it admits to
having installed new ceilings, floors and carrying out painting and
tiling. Neither in
its founding affidavit nor in its answering
affidavit has the municipality sought to refute this version by
producing the existing
plans for the premises and indicating the
precise location of the alterations and why it contends that they
warrant the production
of new building plans.
[17]
Although the municipality sought interim relief, by the time the
matter was eventually argued,
all of the respondents had delivered
opposing papers. The municipality persisted in its claim for final
relief on the papers, which
by then had been extensively
supplemented. In the intervening period between the dates when the
application papers were served
on the respondents and when the matter
was finally argued, the relief sought by the municipality had
undergone a metamorphosis,
resulting in the evidence and
circumstances which underpinned the relief as set out in the founding
papers, changing. The degree
of change is disputed by the appellant,
it contending that the change was not substantial and that the
respondents had throughout
understood the 'substance' of the relief
being pursued by the appellant.
[18]
When the matter served before Kruger J on 26 November 2020 all of the
parties were represented.
Counsel for municipality informed the court
that the application against the fourth respondent, Yunoos Dhooma,
had been withdrawn
and tendered his costs. The municipality persisted
in seeking relief against the remaining respondents and sought an
order in terms
of an amended draft order attached to its heads of
argument. The terms of the draft order are relevant to the judgment
of the court
a quo and the argument advanced in this court. I set out
the full text of the draft order so that the context in which the
matter
was approached by the parties may be more clearly understood.
The draft order reads as follows (the relief that is additional to
that sought in the notice of motion is underlined):
'1.
That
the applicant is given leave to withdraw the application against the
fourth respondent and is directed to pay the fourth respondent['s]
costs until 24 January 2020.
2.
That:
(a)
the respondents
[7]
are
interdicted and restrained from using or permitting to be used the
property or any part of the property described as Erf 981,
CBD
Stanger, also known as 1 King Shaka Street, KwaDukuza as:
(i)
A hardware store; or
(ii)
A builder's supply yard; or
(iii)
In any way in conflict with the zoning of the property for Mixed Core
Use
3 in terms of the KwaDukuza Land Use Management Scheme;
(b)
the respondents are interdicted and restrained from using or
permitting
to be used the property or any part of the property known
as Erf 3108, CBD Stanger, from being used:
(i)
For the parking of any vehicle other than a light motor vehicle;
or
(ii)
for the offloading or loading of trucks; or
(iii)
As part of
a hardware store business,
[8]
or
(iv)
As a builder's supply yard; or
(v)
In any way in conflict with the zoning of the property for Mixed Core
Use 3 in terms of the KwaDukuza Land Use Management Scheme;
(c)
the respondents are interdicted and restrained from:
(i)
using, or permitting to be used the property or any part of the
property known as Erf 3108, CBD Stanger, as a driveway or access
route to Erf 981, CBD Stanger; or
(ii)
causing or allowing the delivery of building materials on, or
impeding the use of, the parking lot on Erf 981, CBD Stanger;
(d)
That the respondents are directed to vacate, or cause to be vacated,
the
portion of
the property described as Erf 981, CBD Stanger, also known as 1 King
Shaka Street,
used
by the second respondent as a hardware shop
[and not to permit the occupation thereof until or unless a
certificate of occupancy],
[9]
issued after 1 October 2019, as required by section 14 of the
National Building Regulations Act and Building Standards Act, 103
of
1977, permitting such occupation may have been issued;
(e)
all costs of this application shall be paid by the respondents
jointly and severally, if
unopposed, on the attorney and client
scale, such to include the costs of senior or two counsel, where
employed; and if opposed
shall be paid by any party which
unsuccessfully opposes the application, on the attorney and client
scale, such to include the
cost of senior or two counsel, where
employed.'
[19]
As stated earlier, Kruger J dismissed the application with costs on
an attorney and client scale.
After reasons for dismissing the
application were provided, the municipality sought leave to appeal
the order. The application
for leave to appeal was dismissed with
costs. The municipality then sought special leave from the SCA in
terms of
s 17
of the
Superior Courts Act 10 of 2013
. On 14 February
2022 the SCA granted leave to the Full Court. The subsequent notice
of appeal delivered by the municipality, dated
21 February 2022,
records that the appeal is directed against the 'whole of the order
of his Lordship Mr Justice Kruger
'.
[20]
It is to the ambit of the order of the SCA granting leave to appeal
to this Court that I turn
first. Mr
Pillemer
SC, who appeared
on behalf of Stangvest in this court and the court a quo, raised the
point in his heads of argument that the relief
for an ejectment order
based on Jabula's and/or Stangvest's alleged failure to apply for a
certificate of occupation pursuant to
having carried out certain
alterations to the building on Erf 981, was expressly abandoned
during argument in the application for
leave to appeal. Accordingly,
it was submitted that this ground cannot be resurrected. Reliance was
placed on a transcript of the
proceedings in the application for
leave to appeal where Mr
Goddard
SC, who appeared for the
municipality in the court a quo and in this Court, stated the
following:
'....
the applicant doesn't apply for leave to appeal in respect of the
refusal of an eviction because they were building without
plans. So,
it doesn't fall under [the] National Building Regulations Act.'
[21]
The appellant on the other hand submitted that in its application to
the SCA, it sought leave
to appeal against the
whole
of the
order of Kruger J, including the relief in prayer 2
(d)
of the
notice of motion. Even though this relief was not persisted with
during argument in the application for leave to appeal,
counsel did
not concede that this leg of its argument had been effectively
abandoned or waived. The question which arises is whether
in a
subsequent petition to the SCA in terms of
s 17
of the
Superior
Courts Act, can
the point abandoned earlier, now be resurrected? In
Alexkor Ltd v The Richtersveld Community
[2003] ZACC 18
;
2004 (5) SA 460
(CC)
at para 43 the following was said on this point (footnotes omitted):
'The
applicable rule is that enunciated in
Paddock Motors (Ply) Ltd v
lgesund
. In that case, the Appellate Division held that a
litigant who had expressly abandoned a legal contention in a Court
below was
entitled to revive the contention on appeal. The rationale
for this rule is that the duty of an appeal court is to ascertain
whether
the lower court reached a correct conclusion on the case
before it. To prevent the appeal court from considering a legal
contention
abandoned in a court below might prevent it from
performing this duty. This could lead to an intolerable situation, if
the appeal
Court were bound by a mistake of law on the part of a
litigant. The result would be a confirmation of a decision that is
clearly
wrong.'
[22]
Mr
Goddard
placed reliance on
Mount Edgecombe Country Club
Estate Management Association II (RF) NPC v Singh and others
2019
(4) SA 471
(SCA) where a contention not pursued in the court a quo
was nonetheless argued on appeal in the SCA. In that matter, before
the
Full Court, all parties accepted that the roads which ran through
the estate were public roads and subject to the
National Road Traffic
Act 93 of 1996
. When the matter came before the SCA it was contended
that the concession (that the roads were public roads) was
erroneously made
and was withdrawn by the appellant. Relying on the
passage cited from
Alexkor
above, the SCA affirmed the
position that the appellant was not bound by a legal concession if
the appeal court considers the concession
to be wrong in law. It also
considered whether the withdrawal of the concession could cause any
prejudice to the respondents and
whether the facts relating to the
issue had been fully canvassed in the affidavits. Mr Goddard however
accepted that the issue
pertaining to the ejectment relief was
distinguishable from the issue raised in Mt
Edgecombe
. Here,
we are not concerned with the withdrawal of a legal concession,
erroneously made. The appellant did not seek leave to appeal
before
Kruger J on the point of the certificate of occupancy and ejectment
from the premises. Accordingly, can it be said that
this ground was
refused as contemplated in
s 17(2)
(b)
of the
Superior Courts
Act? It
could only have been refused, if it had been sought and
denied. As the transcript indicates, it was not pursued by the
appellant.
[23]
The record before us does not contain the application for leave to
appeal to the SCA. Counsel
for the appellant informed us that the
relief in prayer 2
(d)
formed part of that application. The
application to the SCA was indeed for leave to appeal against the
whole of the order. This
was accepted by the respondents, who
delivered opposing affidavits. As matters transpired, the SCA granted
the application in terms
of
s 17(2)(f)
of the
Superior Courts Act
without
any limitation of the issues on appeal. The position before
us is not the same as in
Newlands Surgical Clinic (Pty) Ltd v
Peninsula Eye Clinic (Pty) Ltd
2015 (4) SA 34
(SCA) where the SCA
was faced with a matter in which leave to appeal had been granted by
the court a quo on limited grounds. Those
limited grounds defined the
issues before the SCA, which was of the view that unless the
appellant had specifically petitioned
the SCA on additional matters,
it had no jurisdiction to consider them. The converse situation
arises in this matter where leave
to appeal was refused by the court
a quo, and the applicant (appellant) succeeded in petitioning the SCA
for leave in respect of
the
whole
judgment. This constitutes
the 'jurisdictional fact' forming the basis for the hearing of this
appeal.
[24]
Importantly,
s 17(2)
(f)
provides
that the decision of the court to grant or refuse leave 'is final'.
In that context, I am of the view that it is not open
to this Court
to narrow down the grounds on which the appeal may be argued. Leave
to appeal was granted without limiting the issues
to be argued on
appeal, as provided for in
s 17(5)
(a)
of the
Superior Courts Act. While
the issue appears to have been abandoned
in the application for leave to appeal, it was revived in the
s 17
application to the SCA.
[10]
Whatever my views as to whether the relief in prayer 2
(d)
was abandoned, those are irrelevant in light of the decision of the
SCA granting leave against the whole of the order of the high
court.
In any event, I am not persuaded that there was any prejudice to the
respondents, nor did the appellant seek to build a
case on a
foundation not laid before the court
a
quo
.
[25]
Turning to the merits of the appeal, in the court a quo the appellant
presented an amended draft
order which differed from the relief
sought in the notice of motion. Mr
Veerasamy
,
who appeared on behalf of the Jabula respondents,
[11]
submitted that the amended draft order (annexure 'X') emerged for the
first time in argument before Kruger J and was based, in
part, on
issues raised for the first time in the replying affidavit. The court
a quo
adopted the approach that as the facts to support the relief in the
draft order did not emerge from the founding affidavit, it
was trite
that any new matter raised should not be considered. The amended
draft order was described by counsel for both sets of
respondents as
a 'constant moving target', something which the court
a
quo
took exception to.
[26]
Initially, and at least in the founding affidavit, the case of the
municipality was three-fold:
first, that the respondents were using
their private property on Erf 981 as a hardware store in
contravention of the Scheme on
the basis that its zoning as MUG 3 did
not permit the operation of a hardware store, or what it considered
in the alternative,
as a 'builder's supply yard'. The second ground
of relief was that the respondents were using the public parking lot
on Erf 3108
as a builder's supply yard to store their materials. The
third leg was that alterations had been effected to the building on
Erf
981 without plans having been submitted and approved by the local
authority. Accordingly, the occupation of the premises in the
absence
of a certificate of occupation in terms of the NBR Act was unlawful,
and that until this was obtained, the ejectment of
all occupying the
building must follow.
[27]
The appellant sought to explain the basis for the change in relief,
attributing it to the 'change
in circumstances'. It submitted that
once Jabula and/or Stangvest realised that they were using or
permitting the use of Erf 3108
(the public parking space) as a
builder's supply yard without the authority of the municipality and
in contravention of the Scheme,
they moved their unlawful conduct
from the public parking lot onto their own private property (Erf
981). It contends that the relief
sought in the amended draft order
was not 'substantially different' from that in the original notice of
motion, and was not brought
in bad faith nor was it prejudicial to
the respondents.
[28]
The respondents took a different approach to the relief sought in the
amended draft order and
the introduction of new material raised for
the first time in reply, contending that the court a quo was correct
in not taking
such material into account. The municipality delivered
a replying affidavit after the preliminary answering affidavits had
been
delivered by the respondents. After the latter had supplemented
their answering affidavits, the municipality delivered a
supplementary
replying affidavit. The application was heard almost
nine months later. It was only on the day of the hearing, 26 November
2020,
that the municipality presented the amended draft order to the
respondents and the court. It is common cause that the respondents
had no further opportunity of responding to the new material raised
in the municipality's supplementary replying affidavit. Moreover,
the
respondents were seemingly unaware on the day of the hearing that the
new facts relied on would form the basis for the amended
relief.
[29]
It is no answer on appeal for the municipality to contend that the
respondents had prior knowledge
of the facts relied upon by the
municipality. The crucial issue is that until the day of the hearing,
the respondents had no idea
that such facts would form the basis of a
different order sought in terms of the amended draft order.
[30]
In
Molusi and others v Voges NO and others
2016 (3) SA 370
(CC), it was emphasised that a fundamental rule of civil proceedings
is that the parties must be appraised of the case which they
are to
meet and a party must formulate its case so as to define the disputes
for the other parties and for the court. The
court in
Molusi
held in paragraphs 27-28:
'[27]
It is trite law that in application proceedings the notice of motion
and affidavits define the issues between the parties
and the
affidavits embody evidence. As correctly stated by the Supreme Court
of Appeal in
Sunker [Naidoo and Another v Sunker and Others
[2011] ZASCA 216]:
"If
an issue is not cognisable or derivable from these sources, there is
little or no scope for reliance on it. It is a fundamental
rule of
fair civil proceedings that parties ... should be apprised of the
case which they are required to meet; one of the manifestations
of
the rule is that he who [asserts] ... must ... formulate his case
sufficiently clearly so as to indicate what he is relying
on."
[28]
The purpose of pleadings is to define the issues for the other party
and the court. And it is for the court to adjudicate upon
the
disputes and those disputes alone. Of course there are instances
where the court may of its own accord (mero motu) raise a
question of
law that emerges fully from the evidence and is necessary for the
decision of the case as long as its consideration
on appeal involves
no unfairness to the other party against whom it is directed.'
[31]
It is perhaps for this reason that Mr
Pillemer
submitted that
the case which the respondents had come to meet had morphed into
something quite different on the day of the hearing.
It is now well
established that a party should not be 'ambushed' in terms of the
case which it has to meet. As the court in
Bethulie Water Forum
and another v Bloemwater and others
2021 JDR 3295 (FB), para 15
held 'it is impermissible to direct a party to a particular direction
in pleadings only to take a different
direction in arguments and
submissions.'
[32]
The question which the court
a
quo
ought to have asked, in our view, was whether, for a proper
ventilation of the dispute between the parties and in the interest
of
justice, the amendment ought to be allowed with an award of wasted
costs against the municipality. Alternatively, as Stangvest
submitted
in this court, the municipality ought to have asked for an
adjournment on the day of the hearing, proposed an amendment
to the
notice of motion and afforded all of the respondents an opportunity
to deliver further affidavits to address any new facts
raised which
underpinned the new relief sought.
[12]
[33]
While the general rule is that all the allegations on which an
applicant relies must appear in
his founding affidavit, it is not an
absolute rule. The court always has a discretion to allow new matter
in a replying affidavit
in exceptional circumstances, giving the
respondent the opportunity to deal with it in a second set of
answering affidavits.
[13]
Erasmus
points out
[14]
that a court
should consider:
'(i)
whether all the facts necessary to determine the new matter raised in
the replying affidavit were placed before the court;
(ii) whether the
determination of the new matter will prejudice the respondent in a
manner that could not be put right by orders
in respect of
postponement and costs; (iii) whether the new matter was known to the
applicant when the application was launched
and (iv) whether the
disallowance of the new matter will result in unnecessary waste of
costs.'
[34]
Counsel for Stangvest however submitted that the appellant failed to
meet the threshold of showing
'exceptional
circumstances'
.
[15]
A factor operating against the appellant is that it sat idle for nine
months after having delivered its supplementary replying
affidavit,
only to choose on the day of the hearing to present its amended
relief. As to whether new material should be received,
the court in
NSPCA v
Minister of Environmental Affairs and Others
2020 (1) SA 249
(GP), para 43 stated:
'The
relief sought has changed over time from the launch of the
application, as developments on the ground to some extent overtook
the legal process.... However - given that the relief sought has not
substantially changed but the reasons advanced in support
of it have.
. . - I take the view that even though the replying affidavit
introduced a new matter, the court in exercising the
discretion it
has will allow the introduction of such new matter, however subject
to it remaining relevant in the determination
of costs.'
[35]
In
Shakot Investments (Ply) Ltd v Town Council of The Borough of
Stanger
1976 (2) SA 701
(D) at 705A-B the court focused its
attention as to when the new facts emerged, holding that:
'...
a distinction must, necessarily, be drawn between a case in which the
new material is first brought to light by the applicant
who knew of
it at the time when his founding affidavit was prepared and a case in
which facts alleged in the respondent's answering
affidavit reveal
the existence or possible existence of a further ground for the
relief sought by the applicant. In the latter
type of case the Court
would obviously more readily allow an applicant in his replying
affidavit to utilise and enlarge upon what
has been revealed by the
respondent and to set up such additional ground for relief as might
arise therefrom.'
[36]
In my view, to the extent that the new material introduced by the
municipality in its supplementary
replying affidavit (to which the
respondents had no opportunity to respond) formed the basis of the
amended relief in the draft
order, I am in agreement with the court
a
quo
that such material was correctly not considered. While the amended
draft order abandoned the relief in prayer (c) of the notice
of
motion, certain of the relief in the amended draft order was based on
a different, newer set of facts that arose subsequent
to Jabula
moving the building material off Erf 3108 and onto Erf 981, where it
stored the material below the hardware store.
[16]
I have already expressed my view as to the impermissibility in civil
proceedings of the shifting of the goalposts, to the disadvantage
of
one's opponent. To conclude on this point, I agree with the
conclusion reached by the court
a
quo
,
but for reasons which I have already articulated, rather than a
reliance on an absolute rule against receiving new material, which
was the approach taken by the court
a
quo
.
[37]
The first issue to be addressed in prayer 2(a) of the amended draft
order was whether the operation
by Jabula of a 'hardware shop' was in
contravention of the Scheme, or whether Jabula was now using its
premises as a 'builder's
supply yard'. Olsen J rejected this argument
in
Kwadukuza Municipality v Build-Rite Properties (Pty) Ltd and
Others
[2021] ZAKZDHC 24, para 43 where he stated:
'The
definition upon which the applicant relies is a definition of a
"yard". I know of no use of the word "yard",
certainly in the ordinary language I have come across, which conveys
that a building (properly so-called) can be regarded as a
"yard".'
[38]
At the same time Olsen J, in paragraphs 47-48, also ventured to
express his view on what a hardware
shop, as opposed to a builder's
supply yard, would entail:
'[47]
A hardware shop is all about the business of selling of goods. Some
of them will undoubtedly be building material and equipment.
Bearing
in mind the wide range of goods which are to be found in any ordinary
hardware shop, much of which could be regarded as
items or material
used in or in the course of building work (from, for instance, nails
and hammers through to a pocket of cement),
and given the
self-evident popularity of, and the need of ordinary people
(non-builders) to access, the materials and tools and
the like sold
in a hardware shop, it is wrong to give the excluded use (builder's
supply yard) so broad a meaning as to exclude
the operation of a
hardware shop inside a building on a property governed by a zoning
such as that attributed to Erf 220.
[48]
Builder's supply yards, being open land and normally quite large
pieces of land, can accommodate the storage and sale of industrial
scale quantities of such items as sand, stones, bricks and so on, and
therefore attract a significant flow of industrial type traffic
in
the way of heavy vehicles both delivering materials to the yard and
picking material up from the yard for delivery to building
sites.
That sort of traffic generation and activity would be a considerable
obstacle to the enjoyment of the public amenities which
are supposed
to be available in an area zoned MUC3. The level of storage and trade
- generated interference with public amenities
by a facility such as
a hardware shop contained within a building cannot be compared to
that generated by a builder's yard.'
[39]
Significantly,
Build Rite
also concerned an application by the
KwaDukuza municipality to interdict the operation of a hardware store
in a MUC 3 zone. The
interdict was refused, and the court affirmed
that the operation of a wholesale hardware store did not contravene
the Scheme. In
reaching this decision, Olsen J also expressed
agreement with the conclusion reached by Kruger J in the court
a
quo
'on the zoning issue'. In this court, Mr
Goddard
accepted that the municipality was bound by the determination reached
by Olsen J and it did not seek to appeal that judgment.
[40]
I am in agreement with the conclusion reached in Build Rite. However,
that only addresses the
relief sought by the municipality as it
pertains to the operation of a hardware store from the premises in
prayer 2(a) of the amended
draft order. To the extent that Jabula
moved its goods and materials off Erf 3108 and stored them outside on
Erf 981 while it was
preparing the storeroom to accommodate the
storage, the municipality contends that storing goods
outside
constitutes a 'builder's yard' which is prohibited. Mr
Pillemer
submitted that on this interpretation, even the storage of goods
outside of the premises 'for fleeting moments', including when
they
are in the process of being offloaded, may constitute a contravention
of the Scheme. Such an interpretation, on any score,
would appear to
be irrational.
[41]
In light of what has been set out in some detail above, I am of the
view that the operation of
a hardware store by Jabula on Erf 981, CBD
Stanger, is not in conflict with the zoning of the property for Mixed
Core Use 3 in
terms of the Scheme. The court a quo correctly
dismissed the application on this ground.
[42]
The next issue to consider is the relief in 2
(b)
in which the municipality seeks to prevent Jabula from using a
municipal owned parking lot and an access road to shops, for any
purpose other than parking of light motor vehicles. The interdict
sought by the municipality effectively impedes Jabula's right
to
trade in that it cannot use the parking lot for the purpose of
offloading building materials or for the loading of materials
purchased by customers into their vehicles, other than if light
delivery vehicles are used. The interdict sought by the municipality
would extend even to a temporary use by a customer or merchant having
business with Jabula, and using anything but a light delivery
vehicle. Jabula's offer to contribute to the municipality's 'parking
reserve fund'
[17]
as set out
in clause 12 of Additional Controls to the Zoning Certificate, was
rejected by the municipality for reasons that appear
tenuous at best,
with the suggestion being that any acceptance of the offer may be
construed by the respondents as a basis to justify
their operation of
the premises as a hardware store.
[43]
It was not disputed that as at the time when the municipality
delivered its replying affidavit
in July 2020 Jabula had ceased using
the parking lot as a builder's supply yard. Jabula never denied using
the parking lot in a
manner that contravened the Scheme. Once this
was brought to its attention, and certainly by the time litigation
commenced (between
25 November and 4 December 2019), it took remedial
action and removed its goods from Erf 3108. Accordingly, by the time
the matter
was to be argued, the relief sought in prayers 2
(b)(iii)
,
(iv) and (v) was moot. The municipality was not satisfied, and
contended that the storage of the goods
in the basement
of the
premises of Jabula constituted a builder's supply yard. This argument
was later abandoned and the contention thereafter
was that the
storage of goods remaining
out in the open
on Erf 981 (while
waiting for the basement to be properly renovated) constituted a
builder's yard. Even then, in my view where
Jabula used an
insignificant portion of the property on Erf 981 to store surplus
goods for the hardware store, this did not translate
to Erf 981 being
categorised as a builder's supply yard.
[44]
The municipality then contended that Jabula had unlawfully erected a
fence and a driveway access
gate, with a 'No Entry' sign on Erf 3108.
Again, once this was brought to the respondents' attention, they
obtained expert advice
and relocated the driveway and access gates.
The responses and conduct of the respondents must be seen in the
context of
an occupant carrying on business legitimately as a
hardware store, and at the same time having to comply with strict
standards
being imposed by the municipality. Notwithstanding, the
municipality sought in its replying affidavit to seek additional
relief
to interdict the respondents from fencing off or
'appropriating any part of Erf 3108' or from using it as a driveway
or access
route. It is this type conduct that the respondents bemoan
as having to deal with a 'moving target' and a constant shifting of
the goalposts by the municipality.
[45]
It is necessary to point out that at the hearing of the matter it
became apparent during the
argument on appeal that the many of the
captions of the photographs attached to the municipality's
supplementary affidavit incorrectly
transposed the Erf numbers from
3108 to 981. This was not brought to the attention of the court
a
quo
. This no doubt would impact on the interpretation of the
affidavits, to which the photographs were attached, particularly
regarding
the erection of a driveway gate and a newly created
builder's supply yard, both allegedly on Erf 3108. In the result,
there was
considerable confusion (both to this court and seemingly to
counsel) as to which erven was being referred to when the
municipality
alleged that the Scheme was being contravened at a
particular point in time, bearing in mind the contention of the
respondents
that they were dealing with a 'moving target'. Even
against this backdrop, Mr
Goddard
submitted that the
respondents nonetheless understood the substance of the
municipality's complaint and moved the offending materials
onto their
own property. I have serious reservations as to whether final relief
could have been at all granted, having regard to
the confusion that
arises when one properly has regard to the allegations (based on the
photographs as presented) in the municipality's
affidavit. These
incorrect factual averments were left unaddressed before the court a
quo.
[46]
In regard to the restrictions sought to be imposed on the use of the
parking lot, although Mr
Veerasamy
contended that the
municipality failed to define precisely what it meant by reference to
'light motor vehicles', one can safely
assume that the interdict was
directed against the use of trucks offloading and loading materials
via the public parking space.
The point stressed by counsel is that
the municipality has not indicated anywhere in the founding papers
why the parking is only
to be restricted to 'light motor vehicles'
only, and more importantly why final relief for an interdict is
sought only against
those users having business with Jabula. The
basis for the municipality's restriction to 'light motor vehicles'
only, does not
appear to be rational or directed at curbing some
mischief, particularly as a 'light motor vehicle', would include a
vehicle:
'.
. . . the tare of which does not exceed 3 500 kilograms or, where
such motor vehicle is (aa) a bus or goods vehicle, the
gross
vehicle mass of which does not exceed 3 500 kilograms; (bb) an
articulated motor vehicle, the gross combination mass of which
does
not exceed 3 500 kilograms.'
[18]
[47]
Counsel for the municipality contended that Erf 3108 was contemplated
for the use of 'car spaces'
- that the Additional Controls to the MUC
3 Zoning Certificate refer to the provision of
'4
car spaces per 100m2 of the Gross Floor Area'
.
This however is not elaborated on in the founding affidavit and there
is no certainty as to the rationale for wanting to restrict
access to
the parking area on Erf 3108 to light motor vehicles. In any event,
to do so would be inconsistent with the proclaimed
purpose of
establishing a Mixed Core Use 3 zone which is aimed at the provision
of retail services at 'high intensities that comprise
a town
centre'.
[19]
Moreover, the
restriction sought to be imposed would effectively preclude those not
in possession of a light motor vehicle from
parking in a public
parking lot. Again, no rational purpose can be discerned from such a
restriction.
[48]
The court
a quo
dismissed the municipality's contention that
Jabula's vehicles were not permitted to park in a public parking
space, despite Jabula
admitting that forklifts were used to offload
goods from trucks bearing building material. Importantly though, the
court
a quo
found that the municipality was being selective in
enforcing its control over the parking. It is not disputed that the
Checkers
supermarket and a bottle store are situated in immediate
proximity to Stangvest's property on Erf 981. Jabula contends that
both
these businesses use Erf 3108 in the same manner that it did,
yet the municipality has sought to only single out Jabula and
Stangvest
for the purposes of enforcing the by-laws. To the extent
that the respondents accuse the municipality of selective litigation,
the court
a quo
endorsed that view, and relied on a photograph
annexed to Jabula's affidavit which depicts a large SAB delivery
truck, stationary
in Erf 3108, presumably making deliveries to the
bottle store.
[49]
Counsel for the appellant attempted to argue away this finding,
contending that the trucks carrying
out deliveries to the bottle
store were somehow 'infrequent' and 'occasional' as compared to the
'regular' offloading of building
materials to Jabula. These
submissions were made without any factual basis and without any
evidence in the affidavits. Moreover,
there is nothing on record to
suggest that the use of vehicles delivering goods to Jabula would be
any more of a 'nuisance', or
would affect the 'municipal amenity' as
might exist, to any greater degree than trucks delivering beer
bottles and liquor to the
bottle store. The disparate approach of the
municipality towards the business of Jabula and its immediate
neighbours finds no justification,
in my view.
[50]
There is another reason why the approach of the municipality towards
Jabula is concerning. It
is an accepted fact that small businesses,
particularly those located in busy central business districts,
receive delivery of merchandise
through public thoroughfares. A
general dealer selling soft drinks, alongside bread and milk in his
shop, would hardly ever receive
delivery of goods via a light motor
vehicle using a designated loading zone. These are either
non-existent or utilised for some
other purpose. Vehicles carrying
out these deliveries on a daily basis would most likely be loaded
with merchandise including those
for several other businesses. That
is the economy of scale. Such trucks are seen 'double-parked' while
off-loading their goods.
The same would apply to the bottle store in
proximity to Jabula, which seeks to do no more than offload goods
outside its premises.
The selectivity of the municipality in seeking
to secure an interdict directed only at Jabula from accessing the
parking lot on
Erf 3108, while adopting a supine approach to the
bottle store and the supermarket is without justification, and lacks
rationality.
In this regard, the high court's invocation of the ratio
in
Quick Drink Co (Pty) Ltd and Another v Medicines Control
Council and Others
2015 (5) SA 358
(GP) para 32, where no
rational basis for the selectivity exists, is endorsed in the present
circumstances.
[51]
Turning to the relief in 2(d) of the amended draft order concerning
the respondents' failure
to obtain a certificate of occupation, the
municipality relies on Jabula's admission that it removed a
'non-structural' wall for
cosmetic purposes. The founding affidavit
indicates in general terms that the building inspector who initially
visited the hardware
store on 4 October 2019 noticed that certain
internal walls had been demolished. The deponent to the
municipality's founding affidavit
confirms that when he visited the
premises on 11 October 2019 he observed 'alterations' to the
building, which in his opinion required
building plan approval.
Neither of the two officials concerned sought to provide any detail
as to where precisely this alteration
or demolition had been
effected, nor had they sought to do so with reference to the existing
building plans, which would be in
the custody of the municipality.
The municipality submits that these alterations constitute an
'erection' for the purposes of the
NBR Act, requiring planning
approval and a certificate of occupation. These allegations are
placed in dispute by Jabula who states
that these constituted 'minor
building works', permitting it to side-step the requirement for a
planning approval in terms of reg
A1(5) of the Regulations in terms
of s 17(1) of the NBR Act, GN R2378, 12 October 1990.
[52]
The affidavits reveal a clear dispute of fact - whether the
alterations constituted 'minor building
works', which is an objective
assessment of the work done - which is incapable of being resolved on
the papers. Certainly, from
the perspective of the appellant which
was seeking final relief, I am in agreement that the court
a quo
was correct in dismissing this ground of the relief.
[53]
As to the issue of whether the municipality was justified in rushing
off to court seeking an
urgent interdict against the respondents for
a multitude of transgressions, while at the same time ignoring the
conduct of other
neighbouring businesses, seems to me, to be
intertwined with the order of the court
a quo
in dismissing
the appellant's claim with costs on an attorney and client scale. The
appellant justified its application contending
that the enforcement
mechanisms in SPLUMA were inadequate, that criminal prosecutions for
a contravention of SPLUMA took too long
to finalise and that fines
were an insufficient deterrent to curb infringements.
[54]
While this may be correct, there is nonetheless an obligation on an
administrator to utilise
the existing remedies provided for in the
legislation before rushing off to court for interdictory relief.
There were certainly
no exceptional circumstances in this matter
justifying the existing mechanisms being jettisoned in favour of the
interdictory relief.
Moreover, a factor alluded to by the court a
quo, is that the respondents, through their conduct, did not evince
the behaviour
of recalcitrant occupiers bent on recklessly carrying
on the unlawful operation of their business. On the contrary, even if
there
is a dispute as to whether Jabula immediately ceased occupying
Erf 3108 on receipt of the application papers, what cannot be
gainsaid
is that Jabula was not unwilling to obey the instructions of
the enforcement officers in the contravention notices. To this extent
it seems to me that much more could have been achieved had the
municipality's officials continued on the path of engagement with
the
respondents to secure compliance with the bylaws. This is
demonstrated in Jabula's response, both to the issue of using Erf
3108 as a builder's supply yard and erecting a fence on the
municipality's property. It acted to ensure compliance with both
complaints.
[55]
The scheme is an essential component of town planning, and a tool to
define the control and regulation
of the use of land.
[20]
In
JDJ
Properties CC and Another v Umgeni Local Municipality and Another
2013 (2) SA 395
(SCA) para 28, the court affirmed the general purpose
of a town planning scheme which is to achieve 'a co ordinated
and harmonious
development of the municipal area ... in such a
way as will most effectively tend to promote health, safety, order,
amenity,
convenience and general welfare'. In general, town planning
schemes are intended to operate not in the interests of the general
public, but in the interests of inhabitants of the area covered by
the scheme.
[21]
[56]
Where a municipality approaches the court in defence of its
constitutional obligations and in
the performance of its public duty,
unless motivated by ulterior purpose or
mala fides
, courts
should be slow to impose punitive costs orders where it is
unsuccessful. In this case, there have been allegations of selective
enforcement and unevenness in the municipality's conduct. The
allegations of disparate treatment in relation to Jabula's
competitor,
Singh's Hardware, are disputed. There is not enough on
the papers, in my view, to make any such finding against the
municipality.
[57]
There is much to be said for the municipality adopting a different
approach to the use by Jabula's
immediate neighbours of the parking
on Erf 3108, and the 'targeting' of Jabula's business. I am of the
view that despite the municipality's
single-mindedness in pursuing
compliance by Jabula with the provisions of the Scheme, this alone
cannot be translated to irrationality
or ulterior purpose. It cannot
be denied that Jabula's original conduct in relation to the use of
Erf 3108 was unlawful. The imposition
of a fine would have had no
impact. The municipality was entitled and duty bound to approach the
court to defend the integrity
of its Scheme.
[58]
On a proper reflection of the matter, I am of the view that the court
a quo
erred in imposing a punitive costs order on the
appellant. At the same time, I am certain that even though Jabula
acted promptly
to curb its conduct, this may not have come about
without the launching of the application. Accordingly, generally
although costs
should follow the result, I am of the view that the
scale of costs ordered to be paid
a quo
should be tempered, in
the form contained below.
[59]
I accordingly make the following order:
(a)
Subject to the revised order proposed below, the appeal is dismissed
with costs.
(b)
The order of the court a quo is set aside and substituted with the
following
order:
'1.
The applicant is granted leave to withdraw its claim against the
fourth respondent and is directed to pay the fourth respondent's
costs up to and including 24 January 2020.
2.
The application as against the first, second, third and fifth
respondents is dismissed with costs.'
Chetty
J
Balton
J
Vahed
J
Case
Information:
For
the Appellant:
G D
Goddard SC
Instructed
by:
Shepstone
& Wylie
Address:
24
Richefond Circle, Ridgeside Office Park,
Umhlanga
Rocks, Durban
Email:
smkhize@wylie.co.za
c/o
Shepstone
& Wylie, Pietermaritzburg
Ref:
JTM/mm/KWAD7135.849
Tel
:
0315757218
Email:
jmanuel@wylie.co.za
For
the 1st & 5th Respondents:
M
Pillemer SC
Instructed
by:
Rakesh
Maharaj & Company
Address:
87
Mahatma Gandhi Street
Suites
B & C, Stanger
Ref:
RM/MH/S1520/CIV
Tel:
032
551 1055
Email:
meru.rmandco@gmail.com
For
the 2nd & 3rd Respondents:
I
Veerasamy
Instructed
by:
Neerajh
Ghazi Attorneys
Address:
6th
Floor, Royal Towers
30
Dorothy Nyembe Street, Durban
Ref:
NG/KP/OHO
1
Tel:
086
124 6369
Email:
neerajh@ngalaw.co.za
Date
reserved:
3
March 2023
Date
of Delivery:
16
October 2023
[1]
The answering affidavit by Jabula Hardware ('Jabula') opposing the
interim relief records that Mr Yunoos Dhooma, the fourth respondent,
is not involved in the management or control of Jabula. He is a
director and ought not to have been cited. The controlling member
of
Jabula is Mr Hoosen Yunoos Dhooma, the deponent to the opposing
affidavit. He describes himself as the controlling member
of Dhooma
Supermarket CC.
[2]
In respect of parking in a Mixed Core Use zone (MUCO), clause 12 of
the Additional Controls to the Zoning Certificate for Erf
981
provides that 'where it is physically impractical to provide on-site
parking the Local Authority shall call upon the developer
to provide
a minimum of 50% of obligatory onsite parking and contribute towards
the shortfall of parking into the parking reserve
fund by way of
such payment in lieu. The cash payment shall be calculated basis of
the cost to the local authority of providing
the car spaces at
ground level that would have been required in terms of the scheme.
In terms of this clause, a car space shall
be taken to be an area of
23 square metres, which includes manoeuvring space. This
contribution shall be made on the approval
of the building plans and
shall be paid before the release of the occupancy certificate.'
[3]
Clause 5.2.5 of KwaDukuza Land Use Management Scheme setting out the
industrial use definitions.
[4]
Section 1 of the National Building Regulations and Building
Standards Act 103 of 1977 ('NBR Act') defines an 'erection' as being
in relation to a building, and 'includes the
alteration
,
conversion, extension, rebuilding, re-erection, subdivision of or
addition to, or repair of any part of the structural system
of, any
building; and "erect" shall have a corresponding meaning.'
(my underlining).
[5]
Section 4 of the NBR Act.
[6]
Section 14(4) of the NBR Act.
[7]
On appeal, relief was only sought against the first respondent
(Stangvest Investments) and one of its directors (the fifth
respondent), and the second and third respondents, being Jabula
Hardware and its 'controlling member' respectively. Accordingly,
the
appellant sought relief as against the 'remaining respondents'.
[8]
In the Notice of Motion the relief originally prayed for included
the following additional subparagraph (in subpara (iii)): '.
. . for
the stacking or storing, even on a temporary basis of any goods or
materials;. . . '
[9]
In place of the words in square brackets, the appellant sought an
order in 2(d) of its amended relief to include the following
words
'alternatively cause to be vacated the portion or portions of the
building on Erf 981 used by the second respondent as
a builders
supply yard and not to permit occupation thereof until or unless a
certificate of occupancy issued '.
[10]
See
Newlands
Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd
2015 (4) SA 34
(SCA) para 14: '... But when the High Court has
limited the grounds of appeal, as it did in this case, this court
has no
jurisdiction to entertain an appeal on grounds which had been
specifically excluded. The fact that these excluded grounds involve
issues of illegality does not detract from this principle. If an
appellant is dissatisfied with the High Court's decision to
limit
the grounds of appeal, its remedy is to petition this court to do
away with the limitation. Since Newlands has failed to
do so, it
follows that this court has no jurisdiction to entertain the ground
of appeal resting on public policy or illegality,
which had
specifically been excluded from the ambit of leave granted by the
court a quo.'
[11]
Reference being made to the second, third and fourth respondents.
[12]
As to 'trial by ambush' see
Minister
of Land Affairs And Agriculture and Others V D & F Wevell Trust
And Others
2008 (2) SA 184
(SCA), para 43. See also
Los
Angeles Body Corporate v Noah and another
[2019] JOL 43162
(GJ), paras 32-33; Cally Development and
Contractors CC v City Manager 2019 JDR 0968 (GP), paras 17-18;
MC
Admin and another v Mohlal
[2023]
JOL 59402
(GP), para 19;
Moola
and Others v KwaDukuza Municipality and Another
(2194/2017) [2017] ZAKZDHC 18 (21 April 2017), paras 23-25.
[13]
See
Lagoon
Beach Hotel (Pty) Ltd v Lehane NO
2016 (3) SA 143
(SCA) at 152G-H in which it was held that in urgent
applications courts are more sympathetic to an applicant and often
allow
papers to be amplified in reply, with the respondents being
permitted to file further answering papers.
[14]
D E van
Loggerenberg Erasmus: Superior Court Practice
RS 18 (2022) at 01-67.
[15]
Triomf
Kunsmis (Edms) Bpk v AE & Cl Bpk en Andere
1984 (2) SA 261
(W) at 270A;
Johannesburg
City Council v Bruma Thirty-Two (Pty) Ltd
1984 (4) SA 87
(T) at 91F-92F;
Kwinana
and Others v Ngonyama and Others
[2022] ZASCA 48
para 12.
[16]
See
Poseidon
Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban)
and Another
1980 (1) SA 313
(D) where it held that 'The correct approach to the
problem was enunciated clearly by CANEY J in
Bayat
and Others v Hansa and Another
1955 (3) SA 547
(N) at 5530: "...the principle which I think
can be summarised as follows... that an applicant for relief must
(save in
exceptional circumstances) make his case and produce all
the evidence he desires to use in support of it, in his affidavits
filed
with the notice of motion, whether he is moving
ex
parte
or on notice to the respondent in his answering affidavits), still
less make a new case in his replying affidavits."
[17]
Also referred to in the record as a 'deferred parking payment
mechanism'.
[18]
Section 15
of the
National Road Traffic Act 93 of 1996
.
[19]
MUG 3 zoning certificate of KwaDukuza Municipality.
[20]
See
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
2010 (6) SA 182
(CC) para 57.
[21]
The
Administrator, Transvaal and the Firs Investments (Pty) Ltd v
Johannesburg City Council
1971 (1) SA 56
(A) at 70D;
BEF
(Pty) Ltd v Cape Town Municipality & others
1983 (2) SA 387
(C) at 401F.