Swart v Bergh N.O and Others (A79/2020) [2022] ZAFSHC 64 (25 March 2022)

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[2022] ZAFSHC 64
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Swart v Bergh N.O and Others (A79/2020) [2022] ZAFSHC 64 (25 March 2022)

IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:   NO
Circulate to
Magistrates:       NO
Case No:
A79/2020
In the matter
between:
ANNELISE
SWART
Appellant
and
H BERGH
N.O.
1
st
Respondent
JOHAN CHARLES
BERGH
N.O.
2
nd
Respondent
JAMES GEORGE
AUSTIN
N.O.
3
rd
Respondent
(in their capacity
as Trustees of the
CHANWILL TRUST
)
CORAM
:
JP DAFFUE J et M MATSHAYA AJ
HEARD
ON
:
31 JANUARY 2022
DELIVERED
ON
:
25 MARCH 2022
This judgment was
handed down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and
time for hand-down is deemed to be 13h00 on 25 March 2022.
I
INTRODUCTION
[1]
This is an appeal by the unsuccessful defendant against the judgment
dated
8 May 2020 in the Bloemfontein Magistrate’s Court under case
number 7343/2015.  Insofar as the appeal has lapsed for the
reasons
set out later herein, we were also called upon to adjudicate
an application for declaratory relief and a counter-application
for condonation.
II
THE PARTIES
[2]
The appellant is Mrs Annelise Swart who was represented before us by
Adv
R Van der Merwe instructed by Honey attorneys.
[3]
The respondents are the three trustees of the Chanwill Trust, to wit
Messrs
H Bergh, JC Bergh and JG Austin. They have been represented by
Adv J Ferreira instructed by Bezuidenhouts Inc.  Henceforth I
shall refer to the respondent parties in the singular as “the
respondent”.
III
THE ORDERS OF THE COURT
A QUO
AND A SUMMARY OF THE REASONS FOR
JUDGMENT
[4]
The respondent, having instituted two separate claims for payment of
arrear
rental and municipal charges, to wit claim 1 in respect of the
period 1 June 2011 – 30 June 2014 in the amount of R76 550.64 and
claim 2 in respect of the period from 1 July 2014 – 30 November
2014 in the amount of R70 928.30 together with interest
a
tempore morae
and costs, the court
a quo
eventually
found partially in favour of the respondent in the following words
which I quote
verbatim
:
“
1.
In respect of Claim A, the defendant is ordered to pay the
outstanding Municipal charges as at 30
June 2014 to the Plaintiff;
2.
In respect of Claim B, the Defendant is ordered to pay R70 928.30
(Seventy thousand nine
hundred and twenty-eight rand, thirty cent) to
the Plaintiff;
3.
Defendant to pay Plaintiff interest at a rate of 9,00%
tempore
morae
till date of payment hereof;
4.
From the total in respect of claim A and claim B must be deducted
Defendants deposit in the
amount of R20 520.00 (Twenty thousand
five hundred and twenty rand).
5.
Defendant to pay Plaintiff’s taxed or agreed party and party costs,
which costs will include
increased Advocates fees.”
[5]
The court
a
quo
repeated itself several times in the written judgment whilst
referring to numerous authorities, several of whom I shall discuss
again
herein.  In concluding its judgment and having found it
was common cause that the rental premises were rented out to be used
as a coffee shop, home industry and restaurant contrary to the zoning
provisions indicating that the property may only be used for
dwelling
purposes as it was zoned “Single Residential 2”,
[1]
the court concluded as follows and I quote
verbatim
:
[2]
“
In respect of
claim A:   The court is of the view that the rental in
respect of the lease of 3 President Steyn Street, Westdene,
Bloemfontein as a Coffee Shop, Home industry and Restaurant for the
period 01 June 2011 to 17 June 2014 was illegal and unenforceable
as
it was contrary to the purpose for which it was zoned.
The court is of the
view that the Defendant shouldn’t be held liable for the remaining
part of the rental from 15 June 2014 to 31
June 2014 to give her
ample time to cancel the lease agreement or ding alternate
accommodation.
But the defendant
also utilised the premises as a dwelling house in line with the
zoning as Residential 2.  The parties never
specified in the
contract the amount that would be payable in respect of the lease for
residential purposes and the court is not
in a position to make an
order in that regard, The defendant received municipal services from
the Mangaung metro municipality in
respect of her being resident of a
dwelling House and should be held liable in respect thereof.
The court is of the view that
the defendant should be held liable in
respect of the outstanding municipal charges for the period 01 June
2011 to 30 June 2014.
In respect of claim
B the court is of the view that the Defendant should as far back as
July 2013 when she applied for a liquor licence
have enquired about
the zoning of the premises.  The letter from the Mangaung Metro
Municipality is dated 17 June 2014 and despite
knowing that the
property wasn’t zoned for business purposes, the Defendant
continued to reside at the premises despite knowing
that is wasn’t
zoned for business premises.  The defendant still conducted her
Coffee Shop, Home Industry and Restaurant from
the incorrectly zoned
premises and resided at the premises until she vacated the premises
in November 2014.  The court is of
the view that the Defendant
should have vacated the premises on learning about the incorrect
zoning.  Due to her not vacating
the premises the court is of
the view that the Defendant is liable for the arrear rental and
municipal costs for the period from
1 July 2014 to 30 November 2014
and rental as she utilized the premises for Residential purposes.
The court is of the
view that the rental for the period in question is in line with the
cost of renting premises for residential purposes
in the suburb of
Westdene.”
IV
GROUNDS OF APPEAL
[6]
The appellant’s grounds of appeal consist of no less than 23
paragraphs
including several sub-paragraphs.  In my view it was
totally unnecessary and appropriately accepted to be the case by the
appellant’s
counsel who decided to mention only the following four
grounds in his heads of argument:
6.1
The court
a quo
erred in finding that the respondent was
entitled to any payment in respect of the rental agreement concluded
between the parties
which was illegal, void
ab initio
and
unenforceable;
6.2
The court
a quo
erred in finding that the property was fit for
the purpose for which it was let;
6.3
The court
a quo
erred in finding that the respondent has
proven the
quantum
of its claim insofar as it failed to place
admissible evidence before the court in this regard;
6.4
The court
a quo
erred in finding that the respondent was
entitled to rely on alleged consequential damages in order to
substantiate claim two insofar
as this was not the respondent’s
pleaded case and evidence in that regard was inadmissible.
[7]
It should be mentioned that Mr Van der Merwe, although not conceding
the last three
grounds of appeal, vehemently argued the first ground
of appeal.  Before I refer to the relevant statutory provisions
and authorities
and thereafter evaluate the submissions of the
parties and judgment of the court
a quo
, it is necessary to
consider two intertwined applications which need adjudication.
V
THE CONDONATION APPLICATION
[8]
On 21 April 2021 the respondent filed a notice of motion indicating
that
it will seek two declaratory orders on 20 May 2021, firstly that
the appeal noted by the appellant on 9 June 2020
[3]
had lapsed and secondly, that the respondent may execute the judgment
of the court
a
quo
dated 8 May 2020.  It also sought costs of the application.
The appellant filed a notice of intention to oppose the application
and simultaneously filed a counter-application, seeking condonation
for her failure to prosecute the appeal within the time prescribed
by
the Uniform Rules of Court.  Condonation is also sought for the
failure to file the notice of appeal timeously.  Consequently,
an order is sought in terms whereof the appeal is reinstated in terms
of Uniform Rule 49(5)(b) and that the respondent be ordered
to pay
the costs of the application only in the event of opposition.
It will soon appear that the references to the Uniform
Rules of Court
are indeed incorrect.  The appellant made a meal of this
counter-application insofar as her affidavit consists
of 52 pages and
the annexures thereto a further 83 pages.
[9]
The two applications were eventually heard by us on the date set down
for
the appeal.  Mr Van der Merwe made the same mistake in his
written heads of argument by referring to the incorrect rules, but
he
rectified matters during oral argument.  It needs to be
clarified that the notice of appeal should have been filed with the
clerk of the court
a
quo
and not with the registrar of the High Court.  The notice of
appeal was filed with the registrar of this court on 9 June 2020
which was also hopelessly out of time, bearing in mind the provisions
of rule 51(3) of the rules issued under the Magistrate’s
Court
Act.
[4]
It appears from
the papers that the notice of appeal was filed with the clerk of the
court
a
quo
on 29 April 2021 only, and therefore nearly 11 months late.
[10]
The appellant also failed to take the further steps required by the
Uniform Rules of
Court since noting the appeal and on the basis that
it was indeed properly lodged with the clerk of the court
a
quo
which was obviously not the case.  Rule 49 relied upon is not
applicable as this rule deals with appeals from and not to the
High
Court.  The correct rule is rule 50.
[5]
[11]
Condonation applications in the High Court are dealt with in
accordance with rule 27.
Good cause is required and a full and
reasonable explanation must be given for the delay.
Furthermore, a
bona
fide
defence must be shown as well as no prejudice to the other side which
cannot be rectified by a costs order.
[6]
[12]
In my view the reasons advanced by the appellant and her attorney
fall far short of
what is expected in applications for condonation.
The following admonition of Heher JA in
Uitenhage
Transitional Local Council v South African Revenue Service
[7]
was clearly not taken seriously:
“
[6] One would
have hoped that the many admonitions concerning what is required of
an applicant in a condonation application would
be trite knowledge
among practitioners who are entrusted with the preparation of appeals
to this Court: condonation is not to be
had merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished
so as to enable the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that, if the non-compliance
is time-related then
the date, duration and extent of any obstacle on which reliance is
placed must be spelled out.”
[13]
I am satisfied, notwithstanding a serious degree of non-compliance
and an improper
explanation therefore, the importance of the case and
the interests of both parties to finality, the convenience of the
court, the
avoidance of further unnecessary delay in the
administration of justice and in particular the prospects of success,
that the respondent’s
application for declaratory relief should be
dismissed and the appellant’s application for condonation be
granted.
[8]
[14]
The appellant, being the successful party in the application for
condonation, sought an indulgence
and there is no reason why she
shall not be ordered to pay the costs of both applications, for
declaratory relief and condonation,
on an unopposed basis as not much
time and effort have been wasted in dealing with the two intertwined
applications.
VI
RELEVANT STATUTORY PROVISIONS AND AUTHORITIES
[15]
O’Regan J confirmed the trite principle more than a decade ago in
Walele
v City of Cape Town and others
[9]
that
zoning schemes not only restrict the rights of owners in an area, but
also confer rights on owners,
“
because
owners are entitled to require that neighbouring owners comply with
the applicable zoning scheme.  Where an owner seeks
to depart
from the scheme, the rights of neighbouring owners are affected and
they are entitled to be heard on the departure.”
[16]
In
Emilel
Investments (Pty) Ltd v Silvestry and others
[10]
the Supreme Court of Appeal, having confirmed the unlawful use of the
property, refused to suspend an interdict obtained against
the
unlawful use in order to apply for an amendment of the zoning
scheme.  Malan JA held:
[11]
“
Nor
can the outcome of such application be predicted with any
confidence.  Suspending any order would merely prolong the
appellant’s
illegal conduct.”
[17]
Although we do not deal with an application by a disgruntled
neighbour as was the case
in several matters that came before
different judges of this division over the previous few years, it
needs to be pointed out that
in most of these cases interdicts were
granted to prevent the further unlawful conduct of business in the
suburb of Dan Pienaar and
in areas zoned for residential
purposes.
[12]
In many of these
cases the respondents unsuccessfully relied on the defence that they
had applied to the local authority for consent
in terms of s 18(3)(b)
of the Bloemfontein Town Planning Scheme to conduct business and were
awaiting the outcome.
[18]
The appellant pleaded that it was illegal and contrary to the
Bloemfontein Town Planning Scheme, 1 of 1954,
the Town Planning
Ordinance 9 of 1969 (“the Ordinance”), as well as the Spatial
Planning Land Use Management Act 16 of 2013 (“SPLUMA”),
for the
respondent to rent out the premises to the appellant in order to
conduct a business.  It was furthermore pleaded that
use of the
premises for business purposes was illegal in accordance with s
41(1)(a)(iv) of the Ordinance.  Consequently, she
pleaded that
the rental agreement was illegal and
void
ab initio
.
[13]
In order to deal with this defence and the evidence in that regard,
it is necessary to deal with some statutory provisions
and
authorities.
[19]
It is common cause that the premises rented out to the appellant is
zoned “Single
Residential 2” and may only be used for the purpose
of a dwelling house.
[14]
This is the
de
facto
and
de
iure
position in terms of the approved Bloemfontein Town Planning Scheme.
[20]
Section 41(1)(a)(iv) of Ordinance stipulates that a person who
contravenes any provision
of an approved scheme shall be guilty of an
offence and liable on conviction to a fine not exceeding R500.00 or
to imprisonment for
a period not exceeding 6 months or to both such a
fine or imprisonment.
[21]
It is accepted in the preamble of SPLUMA that municipal planning is
primarily the executive
function of a local sphere of government.
Section 26 of SPLUMA deals with the legal effect of a land use scheme
and I quote:
“
Legal effect
of land use scheme
26. (1) An adopted
and approved land use scheme-
(a)
has the force of law, and all land owners and users
of land
, including a municipality, a
state-owned enterprise and organs of state within the municipal area
are bound
by the
provisions of such a land use scheme;
(b)
replaces all existing schemes within the municipal area
to which the land use scheme applies; and
(c)
provides for land use and development rights.
(2
) Land may be
used only
for the purposes
permitted
-
(a)
by a land use scheme;
(b)
by a town planning scheme
,
until such scheme is replaced by a land use scheme; or
(c)
in
terms of subsection (3)
(3) Where no town
planning or land use scheme applies to a piece of land, before a land
use scheme is approved in terms of this Act
such land may be used
only for the purposes listed in Schedule 2 to this Act and for which
such land was lawfully used or could lawfully
have been used
immediately before the commencement of this Act.
(4) A permitted land
use may, despite any other law to the contrary, be changed with the
approval of a Municipal Planning Tribunal
in terms of this Act.
(5) A municipality
may, after public consultation, amend its land use scheme if the
amendment is-
(a)
in
the public interest;
(b)
to
advance, or is in the interest of, a disadvantaged community; and
(c)
in
order to further the vision and development goals of the
municipality.
(6) A land use
scheme developed and approved in terms of this Act must address and
resolve any conflict with an existing scheme not
repealed or replaced
by the new land use scheme.”
(emphasis
added)
[22]
Section 58(1)(b) of SPLUMA stipulates that a person is guilty of an
offence if that person uses land
contrary to a permitted land use as
contemplated in s 26(2).  A person convicted of an offence in
terms of ss (1) may be sentenced
to a term of imprisonment for a
period not exceeding 20 years or to a fine calculated according to a
ratio determined for such imprisonment
in terms of the Adjustment of
Fines Act, or to both a fine and such imprisonment.
[23]
The court
a
quo
referred to the letter of the Mangaung Metro Municipality dated 17
June 2014 which stipulates that the premises is zoned “Single
Residential 2” and may only be used for a dwelling house.
[15]
In all fairness, it is necessary to quote the second last paragraph
of this letter:
“
In terms of the
approved Westdene Structure Plan, the above mentioned property is
earmarked
for
“Restricted Business 2”.  This implies that if an
application for rezoning is submitted approved by the Free State
Provisional
Government this erf can be used in line with this
zoning.”
(emphasis added).
This
will again be dealt with during the evaluation of the submissions
later on.
[24]
While there are statutes which expressly provide that certain
contracts are void, there
are many statutes which contain no such
express statements.  In the latter case the statute has to be
interpreted in order to
arrive at the intention of the
legislature.
[16]
Generally speaking, where certain conduct is penalised, the
implication is that the conduct is void even if no declaration
of
invalidity is attached to the statute.
[17]
The court continued as follows:
“
After all, what
we have to get at is the intention of the Legislature, and, if we are
satisfied in any case that the Legislature did
not intend to render
the Act invalid the Legislature, we should not be justified in
holding that it was.  As Voet (1.3.16) puts
it – “but that
which is done contrary to law is not
ipso jure
null and void, where the law is content with a penalty laid down
against those who contravene it.” Then after giving some instances
in illustration of this principle, he proceeds:  “The reason
of all this I take to be that in these and the like cases greater
inconveniences and impropriety would result from the rescission of
what was done, than would follow the act itself done contrary
to the
law.”
[25]
In
Swart
v Smuts
[18]
the former Appeal Court expressed a similar view
,
inter alia
quoting with approval
Standard
Bank v Estate van Rhyn
supra.
The
court was of the view that the intention of the legislature must be
sought by considering the following issues raised in
Pottie
v Kotze
[19]
which it quoted with approval:
[20]
“
The
usual reason for holding a prohibited act to be invalid is not the
inference of an intention on the part of the Legislature to
impose a
deterrent penalty for which it has not expressly provided, but the
fact that recognition of the act by the Court will bring
about, or
give legal sanction to, the very situation which the Legislature
wishes to prevent.”
[26]
In
Metro
Western Cape (Pty) Ltd v Ross
,
[21]
the former Appeal Court confirmed that although it is a general rule
that a contract impliedly prohibited by statute is void and
unenforceable, this rule is not inflexible or inexorable.
[22]
In this case the particular section of an ordinance prohibited a
general dealer from carrying on business by entering into
particular
contracts on or from fixed premises without the required certificate
of registration and licence.  The court held
that the purpose of
the ordinance was to provide a system of control and it was not the
object of the ordinance of treating all contracts
entered into by
such unregistered or unlicenced businesses as void.
Consequently, the court held that the purpose of the legislature
was
sufficiently served by the penalties prescribed for illegal trading
and not intended to render contracts entered into between
the trader
and his customers void.
[23]
In arriving at this conclusion the court held that if contracts
concluded between a trader and his customers, being innocent
members
of the public, were held to be void, it would cause grave
inconvenience and injustice to such innocent members without
furthering
the object of the ordinance.
[27]
The intention of the legislature must be ascertained from the statute
as a whole and
no single consideration, however important it may seem
to be is necessary conclusive, as held by Boshoff JA in
Metro
Western Cape (Pty) Ltd v Ross supra
.
[24]
Nowadays, in our constitutional era, statutory interpretation must be
undertaken in accordance with the well-known
dictum
of Majiedt AJ (as he then was) in
Cool
Ideas 1186 CC v Hubbard and Another
[25]
which has been applied with approval in numerous judgments
thereafter.  I quote:
“
[28]
A fundamental tenet of statutory interpretation is that the words in
a statute must be given their ordinary
grammatical meaning, unless to
do so would result in an absurdity.  There are three important
interrelated riders to this general
principle, namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where reasonably
possible, legislative provisions ought to
be interpreted to preserve their constitutional validity.  This
proviso to the general
principle is closely related to the purposive
approach referred to in (a).”
(footnotes omitted)
[28]
In
Absa
Insurance Brokers (Pty) Ltd v Luttig and Another NNO
[26]
the Supreme Court of Appeal had to consider whether s 20
bis
of the Insurance Act
[27]
allowed for an agreement in terms whereof premiums to be paid to the
appellant as a broker could be dealt with in a manner contrary
to the
subsection.  The court held the agreement contravened s 20
bis
and in order to decide whether contravention of the section
necessarily pointed to nullity of the contract the purpose of the
section
was crucial.  The court explained itself as follows:
[28]
“
What is clear is
that the Act as a whole is designed to regulate the insurance
industry. It is an Act which 'has set up elaborate
machinery to
regulate, mainly for the protection of the public, the management and
function of insurers and the conduct of their
business'. (D M
Davis
The South African Law
of Insurance
4th ed at 13-14.) The
provisions of s 20
bis
are
clearly there to regulate the dealing with and retention of premiums
by any agent or broker. The section cannot be said
to have been
enacted only for the benefit of the insurer. It is plainly there to
protect the interests of the public at large and
to ensure that
premiums paid by policy-holders are not dealt with in an
ad
hoc
manner depending on a particular
agreement between an insurer and a broker… The prohibition in s
20
bis(b)
is
peremptory.  The object of the provision is to ensure that the
assets of a registered insurance company are kept safe
and intact…
If one allowed the illegal contract to be enforceable the effect of
this would be to undermine the very purpose
of the Act which, as
previously stated, is
inter alia
to
regulate the operation of the insurance industry.”
Further on the court
held:
[29]
“
The contract
allegedly entered into between the appellant and IGI, strikes at the
very heart of this provision. It effectively purports
to allow a
broker and an insurer to evade contractually the protections afforded
by the Act.
The respondents'
submission that the alleged agreement relied upon by the appellant
was a nullity must succeed.”
[29]
In
Fedgroup
Participation Bond Managers v Trustee of the Capital Property
Trust
,
[30]
it was common cause that an incomplete structure which encroached on
the respondent’s property had been erected by the appellant’s
predecessor in title and that the structure was erected unlawfully
insofar as no building plans had been submitted for approval.
[31]
The appellant sought registration of transfer of a portion of the
respondent’s property on which the illegal structure encroached,
but the Supreme Court of Appeal had no difficulty to dismiss the
appeal.  It stated the following:
[32]
“
A court will not
countenance or be party to perpetuating unlawful conduct.”
The court accepted
the reasoning and conclusion of the earlier judgment of the same
court in
Lester
v Ndlambe Municipality.
[33]
In that case the landowner erected a luxury home on the
Eastern Cape coast contrary to administrative approval.
Several
revised building plans were lodged with the municipality, but the
plans were found not to comply with the statutory and zoning
requirements and consequently these were never approved.  In the
process and during expansion of the property, the neighbours’
panoramic views over the ocean had been blocked.  The Supreme
Court of Appeal held that as it was common cause that the appellant
had erected an unlawful structure, the jurisdictional basis for a
demolition order had been established, that the court
a
quo
did not have a discretion in this regard, but simply had to uphold
the rule of law and refuse to countenance an ongoing statutory
contravention and enforce the provisions of the National Building
Regulations and Building Standards Act 103 of 1977.
[34]
Majiedt JA, writing for a unanimous court, relying on a judgment of
Harms J (as he then was) in
United
Technical Equipment Company (Pty) v Johannesburg City Council,
[35]
held as follows:
[36]
“
Ndlambe is in
exactly the same position as the respondent in the aforementioned
case – it was statutorily and morally duty bound
to approach the
court below for a demolition order in order to uphold the law. The
court
a quo
, in turn,
had a concomitant duty to uphold the doctrine of legality, by
refusing to countenance an ongoing statutory contravention
and
criminal offence.”
[30]
In
United
Technical Equipment Company (Pty) v Johannesburg City Council supra
,
Harms J, writing for the full court in an appeal against the granting
of an interdict in terms whereof the appellant company was
restrained
from using the property which was zoned for residential purposes in
terms of the Town Planning Scheme for business purposes,
held that
the appellant was committing an ongoing offence and consequently held
that the interdict could not be suspended pending
the final dismissal
of the appellant’s application to the administrative authorities
for rezoning of the property.  The following
dictum
is apposite
:
[37]
“
It
follows from an analysis of these cases that discretion can, if at
all, only arise under exceptional circumstances. Furthermore,
I am
not aware of any authority which would entitle the court to suspend
the operation of an interdict where the wrong complained
of amounts
to a crime.”
[31]
The next case to be considered is the Constitutional Court judgment
in
Cool
Ideas 1186 CC v Hubbard and Another
supra
.
In that case the home owner and builder entered into a building
contract in circumstances where the builder was not registered
in
terms of s 10 of the Housing Consumers Protection Measures Act.
[38]
Having considered the proper meaning of s 10(1)(b) of the Act by
making use of statutory interpretation as explained in paragraph
28,
Majiedt AJ (as he then was) held that the purpose of the Act was to
protect housing consumers, that the subsection was aimed
at achieving
a legitimate and important statutory purpose and that there was a
rational, proportional connection between the statutory
prohibition
and its purpose.
[39]
Ultimately the Constitutional Court concluded
as
follows:
[40]
“
The
underlying building contract remains valid and extant.  This is
so even though Cool Ideas is in law precluded from seeking
consideration for the work done, due to its failure to register as a
home builder prior to the commencement of the building works.”
[32]
It is interesting to note that although Majiedt AJ wrote the majority
judgment concurred
in by four of his colleagues,
Froneman
J
in his minority judgment, concurred in by three of his colleagues,
disagreed for the reasons fully set out in his judgment.
[41]
Jafta J agreed with the majority and main judgment with the
concurrence of Zondo J (as he then was) in respect of the end result,
but was of the view that the building contract should have been
declared void, making his point as follows:
[42]
“…
When the
legislature wants to put an end to a particular conduct, it prohibits
it.  As was observed in
Pottie
,
a court cannot give legal sanction to an act prohibited by the
legislature.  Therefore, in
Taljaard
,
the Supreme Court of Appeal erred in holding that the contract of
mandate concluded contrary to the prohibition in s 34A was valid.
The principle that what is done in breach of a statutory prohibition
is invalid may be departed from only if it is clear from the
language
of the relevant legislation that invalidity was not envisaged.
It is not necessary for the prohibition to say non-compliance
with it
would lead to invalidity.”
[33]
To complicate matters, bearing in mind the authorities already
quoted, Majiedt JA had
another opportunity to write a judgment in
respect of zoning issues.  This time he wrote for a unanimous
court in the Supreme
Court of Appeal.  I refer to Wierda Road
West Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc.
[43]
In
this case the respondent and former lessee of business premises
alleged that the lease agreement entered into with the landlord
was
void
ab initio
and
that the appellant was precluded from enforcing its rights.  The
defence of invalidity was based on three grounds pleaded
in the
alternative, to wit:
“
(
a)
That the agreement contravened s 14 of the National Building
Regulations and Building Standards Act 103 of 1977, (the Act) in that
no occupancy certificate had been issued prior to the occupation
thereof;
(b)   that the
appellant had made a fraudulent misrepresentation by failing to
inform the respondent of the fact that no occupancy
certificate had
been issued; and
(c)
that the property was not suitable for the purposes for which
it was let, as it would have constituted an offence for the
respondent to have remained in occupation in the absence of an
occupancy certificate.”
[44]
[34]
Mr Naicker, the main witness for the appellant and lessor in Wierda
Road was not only
a shareholder and director of the appellant, but
also a shareholder of the respondent company.  According to his
evidence the
city council was fully aware that the property was being
occupied without an occupancy certificate, that
its
inspectors came to the property to make an assessment of the
situation and there was no objection to occupation.
[45]
[35]
The respondent in Wierda Road failed to call Messrs Simpson and
Prinsloo who featured
prominently in the events leading up to
conclusion of the lease agreement and after the respondent had
vacated the property.
Consequently, the court had no difficulty
to find that it was not the respondent’s case that the property was
not safe for occupation
and that Mr Naicker’s evidence regarding
problems about the building plans and occupancy certificate was
unchallenged.
[46]
The
absence
of an occupancy certificate was raised pertinently for the first time
as a reason for the respondent vacating the property
and that
non-compliance with s 4 and s 14 of the aforesaid Act rendered the
agreement
void
ab initio
o
nly
after the respondent had vacated the property.
[47]
[36]
Majiedt JA, who also wrote the majority judgment in
Cool
Ideas 1186 CC v Hubbard and Another,
made the
point that the two cases were plainly distinguishable on the facts
and the law insofar as s 10 of the Housing Act expressly
prohibits an
unregistered builder from receiving any consideration whilst s 14 of
Act 103 of 1977 contains no such statutory prohibition.
[48]
It was further held that insofar as s 14(4)(a) contained a penalty
provision, that strongly suggested that the penalty itself
was
intended by the legislature to be an adequate sanction without the
lease agreement also being void.  Also, the Act was less
concerned with private law relationships between for example lessors
and lessees, but rather with public law relationships between
local
authorities and builders, users and occupants.  The court
concluded in this regard with the following observation:
[49]
“
(c)
Lastly, one of the factors to be considered in a determination of the
legislature’s intention is that the additional sanction
may have
undesirable and unintended consequences. This case vividly
demonstrates the unjust and undesirable consequences which may
ensue.
Through no fault of its own and utterly oblivious to the absence of
any plans, having purchased the property at an auction,
the appellant
would find itself in the invidious position of having a lease
agreement declared invalid where it has fully performed
all its
obligations and where the tenant was fully conversant with all the
facts. In addition, the slow grind of the City Council’s
bureaucratic machinery stood in the way of the appellant’s efforts
to regularize the situation for five years.”
The
learned judge of appeal referred with approval to a judgment of Van
der Merwe AJ in
Friedshelf
113 (Pty) Ltd v Mysty Blue Trading
559
CC
[50]
where the learned
acting judge concluded that there were no valid or compelling
considerations indicating that the private lease
agreement should be
visited with the sanction of voidness and
unenforceability
by virtue of the fact that it related to premises in respect of which
the requirements of the Act had not been complied
with.
[51]
Despite a thorough search I could not find this judgment.
[37]
The court’s final conclusion in
Wierda
Road
needs to be quoted fully in order to consider eventually whether that
case is on all fours with the matter under consideration.
I
quote:
[52]
“
[28]
To sum up with regard to this first issue:
non-compliance
with ss 4(1) and 14(1)
does
not render the parties’ lease agreement void and unenforceable
.
There is no basis to justify reading an implied meaning into s 4(1)
that the use or occupancy of a building which has no approved
plans
is prohibited. I discuss next the respondent’s alternative
contention that the property was not fit for the purpose for which
it
had been let, since occupancy would have rendered the respondent
liable to criminal prosecution under s 14(4)(
a
).
[29]
The
respondent was at liberty to request the local authority to pursue
the remedies available to it in terms of the Act
,
had the need arisen to do so.
The
conclusion is compelling that the respondent, with full knowledge of
the lack of an occupancy certificate, had consented to use
and
occupation under the prevailing circumstances
.
The respondent
received exactly what it had bargained for
– office accommodation refurbished to its needs, in a building with
an outstanding occupancy certificate which, to its knowledge,
the
owner (the appellant) was in the process of obtaining. The
respondent
never complained of this alleged unfitness for letting, and only did
so after it had vacated the property and to avoid
the consequences of
being held to a contract it had freely entered into
.”
(emphasis added and footnote omitted)
VII
EVALUATION OF THE EVIDENCE, SUBMISSIONS OF THE PARTIES
AND
THE JUDGMENT OF THE COURT
A QUO
[38]
The respondent expressly represented to the appellant that the
permitted use of the
premises was for a coffee shop, home industry
and restaurant.
[53]
Ironically, the respondent deemed it necessary to insert clause 12 in
the lease agreement which reads as follows:
“
Laws and
practices:
12.1   The
tenant
shall comply
with
ever
y and shall not contravene
any
12.1.1
law or bylaw relating to the use of the lease premises; and
12.1.2
condition of total relating to the property; and
12.1.3
provision of the town planning scheme relating
to the property
; and
12.1.4
law and regulation relating to the conduct of the tenant’s
business.”
[54]
(emphasis
added)
Mr Bergh confirmed
in his
viva voce
evidence that the aforesaid uses were in fact permitted.
[39]
It is irrelevant that Westdene, the suburb wherein the premises are
situated, which
in years gone by was almost exclusively used for
residential purposes, is nowadays flooded with business such as
attorneys’ offices,
restaurants and various other business
concerns.  It is also irrelevant that the same premises were
previously used to accommodate
a law firm.
[40]
It is common cause that neither the respondent, nor its predecessors
in title ever
obtained permission from the Mangaung Metropolitan
Municipality to use the premises for the purposes for which it was
rented out
to the appellant.  The fact that the particular
suburb, inclusive of the relevant premises, has been earmarked for
restricted
business purposes, is irrelevant.  The Bloemfontein
Town Planning Scheme was still not amended by the time that the court
a quo
dealt with the case.
[41]
It could not be expected of the appellant to establish from the
authorities, before
entering into lease agreement, whether the
premises could be used for a coffee shop, home industry and
restaurant.  Her landlord
gave her such rights and there was no
reason to question its competency, bearing in mind that similar
businesses are conducted in
close proximity.  When the appellant
started looking for an ideal spot to conduct her business, she noted
the premises and the
fact that several other restaurants were being
run in the same street.  She believed that the premises had “a
business licence.”
[55]
[42]
The respondent trust, through its trustee who testified
in the court
a
quo
,
Mr Bergh, knew that the premises were not zoned for the purpose that
it was rented out.  He testified that an application for
rezoning was made in 2006 or 2007 by the previous owners, but that
rezoning was never approved.  Mr Bergh made it clear that
he
rented out the premises on two previous occasions for commercial
activities and stated:
“…
but I have
never, I never had the, a new rezoning of anything.”
[56]
He never
testified that he or any of the previous owners asked for and
obtained consent in terms of s 18(3)(b) of the Bloemfontein
Town
Planning Scheme to use the premises for business purposes.
There is also no evidence on record as to whether consent was
asked
for in terms of s 18(3)(b) and/or obtained by such other business
and/or property owners in the immediate area to conduct business
pending amendment of the Bloemfontein Town Planning Scheme.
[43]      My
first reaction was that this court is bound by the decision in
Wierda
Road supra
based on the
stare
decisis
principle. A closer investigation of that judgment revealed
distinguishable features. Unlike the facts in
Wierda
Road
the
appellant was lured into the lease agreement on the express
understanding that she may conduct the businesses as represented in
writing.  When she became aware of the absence of a right to
conduct business from the premises in June 2014, she could not
pack
up immediately and vacate.  It is important to note that the
letter of the Mangaung Metropolitan Municipality referred
to above
pertinently stated that the premises may only be used as a dwelling
house.  One should understand that she had to discuss
the
matter, obtain legal advice and then decide what to do, bearing in
mind that she had established a business during the previous
three
years and that she would suffer a severe future loss of income.
Correspondence ensued between the attorneys as is evident
from the
record.  It was pointed out by the appellant’s attorneys on 8
October 2014 that the landlord had rented out the premises
in
contravention of the municipal by-laws.
[57]
[44]
The respondent trust is as admitted by Mr Bergh in the property
industry.  No
doubt, neither Mr Bergh, nor the trust can be
regarded as an innocent lessor as was the case in
Wierda
Road
.  It was also not necessary to
protect the respondent as lessor based on what was found in
Metro
Western Cape supra
insofar as the respondent
is not an innocent member of the public.  Also, unlike in
Wierda
Road
, the appellant as lessee was totally
unaware of the fact that the premises were not zoned for business
purposes when the lease agreement
was concluded
and
for three years thereafter.
[45]
The facts
in casu
are also distinguishable from those in
Wierda Road
insofar as in that case the municipal officers
attended to the premises and had no objection to occupation.
Furthermore, the
lessee was well aware from the signing of the lease
agreement that no occupancy certificate had been issued, unlike the
knowledge
of the appellant
in
casu
.  This defence
was also raised for the first time after termination of the lease and
only when rentals were demanded.
In casu
the appellant’s
attorneys raised illegality reasonably soon after receipt of the
municipality’s letter.  I in particular
wish to refer to the
dictum
of Majiedt JA referred to in paragraph 36
supra
.
[46]
The court
a quo
correctly held that the lease agreement was
illegal and unenforceable and therefore concluded that claim A could
not succeed.
However, because the appellant utilised the
property, she was held liable for municipal charges until 30 June
2014.  The court
a quo
made the point that the parties
never specified the amount to be paid in respect of the appellant’s
residency and refused to grant
a monetary amount for this period.
It was wrong to grant an order in respect of the payment of municipal
charges for this period
insofar as it has found the lease agreement
to be illegal.  Also, the order is not executable as no amount
is specified and
the parties were in dispute during the trial.
It should be set aside.
[47]
Notwithstanding its finding of illegality and unenforceability of the
lease agreement,
the court
a quo
incorrectly decided to grant
claim B on the basis that the appellant utilised the premises for
residential purposes.  I repeat
the reasoning:
“
The court is of
the view that the rental for the period is in line with the cost of
renting premises for residential purposes in the
suburb of Westdene.”
[48]
The court a quo’s final conclusion is not supported by any evidence
whatsoever and insofar as
it relied on personal information, it could
not take judicial notice of this fact especially when the parties
were not given an opportunity
to address it on the issue.
[49]
The court cannot disregard the judgments quoted above.  I repeat
what was said
in
Walele supra,
to wit that zoning schemes not
only restrict rights of owners, but also confirm their rights.
Therefore, the court shall bear
in mind that illegal conduct by a
property owner or his or her lessee may always negatively affect the
rights of neighbours, who
often do not have the resources to
litigate.  On the same basis that courts grant interdicts to
prevent illegal
conduct this court shall not countenance unlawful conduct by allowing
the respondent from benefiting from an illegal
contract.
VIII
CONCLUSION
[50]
Having correctly found the lease agreement to be illegal, void
and enforceable, the court
a quo
should have dismissed the
claims with costs.
[51]
It is deemed unnecessary to deal with the other grounds of appeal in
view of the finding
arrived at, save to mention that I am not
satisfied that the respondent has proven, based on reliable and
admissible evidence, what
was due and payable as municipal charges in
respect of the premises.  The alleged unfitness of the premises
as a result of electrical
or other problems could not reasonably
considered as a defence
in casu
.
IX
ORDERS
[52]
The following orders are issued:
1.
The application for declaratory relief is dismissed.
2.
The application for condonation is granted.
3.
The appellant shall bear the costs of both these applications on an
unopposed basis.
4.
The appeal succeeds with costs.
5.
The order of the court
a quo
is set aside and substituted with
the following: “
The plaintiffs’ claims are dismissed with
costs.”
JP DAFFUE J
I concur
M MATSHAYA AJ
On
behalf of the Appellant:
Adv R Van Der Merwe
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:     Adv J Ferreira
Instructed
by:
Bezuidenhouts Inc
BLOEMFONTEIN
[1]
Judgment,
p 25 in vol 5 at p 652/31-35.
[2]
Ibid
pp
33/31 – 34/22 at pp 660/661.
[3]
Annexure
“OA1” to the appellant’s affidavit, p 107.
[4]
32 of 44; See also Jones & Buckle, The Civil Practice of the
Magistrates’ Courts in South Africa, vol II 51-1 – 51-6.
[5]
Erasmus
Superior Court
Practice Vol 2 at D1-685 – D1-691.
[6]
Erasmus
loc
cit
in respect of the comments to rule 27 at D1-321 – D1-327 and
Darries
v Sheriff of the Magistrate’s Court, Wynburg and another
1998 (3) SA 34
(SCA) at 40H - 41E.
[7]
2004
(1) SA 292
(SCA) at para 6.
[8]
See
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others
[2013]
2 All SA 251
(SCA) at para 11.
[9]
[2008] ZACC 11
;
2008
(6) SA 129
(CC) at para 130; see also
Camps
Bay Residents and Ratepayers Association and others v Hartley and
others
2011
(4) SA 149
(SCA) at para 23.
[10]
(080/2012)
[2012] ZASCA 181
(29 November 2012).
[11]
At
para 21.
[12]
Labuschagne v Du
Plessis
2018 JDR 1123
(FB) a decision of the full bench on appeal from the judgment of a
single judge;
Marx
v Gray
2020
JDR 0333 FB, a judgment delivered on 5 March 2020 and several other
judgments, some of which are mentioned in the judgment;
see also
Intercape
Ferreira Mainliner v Minister of Home Affairs
2010 (5) SA 367
(WCC) at para 136.
[13]
Paras 2.5 – 2.7 of the a
mended
plea, vol 1, p 35.
[14]
Letter
dated 17 June 2014 of the Mangaung Metro Municipality, vol 1 at p
104.
[15]
Vol 1,
p 103.
[16]
Standard Bank v Estate
Van Rhyn
1925 AD 264
at 274.
[17]
Ibid
at 274
– 275.
[18]
1971
(1) SA 819
A at 829 C – 830 C.
[19]
1954
(3) SA 719
(A) at p 726H.
[20]
Swart
v Smuts
at
p 830B.
[21]
1986
(3) SA 181 (A).
[22]
A
t 188
F.
[23]
Ibid
192 G
– J.
[24]
Ibid
189 A; the learned judge
relied
on a
dictum
of Innes CJ in
Mcloughlin
NO v Turner
1921 AD 537
at 544.
[25]
2014
(4) SA 474
(CC) at para 28.
[26]
1997
(4) SA 229 (SCA).
[27]
27 of
1943.
[28]
Absa
Insurance Brokers supra
at 239
B – H.
[29]
Ibid
p
241
A – B.
[30]
2015
(5) SA 290
(SCA).
[31]
Ibid
para
8.
[32]
Ibid
para
39.
[33]
[2014]
1 All SA 402
(SCA).
[34]
Ibid
para
3.
[35]
1987
(4) SA 343
T.
[36]
Lester v Ndlambe
Municipality
para 27.
[37]
United Technical
Equipment CO supra
at
347 F.
[38]
95 of
1998.
[39]
Ibid
para
44.
[40]
Ibid
para 51.
[41]
Ibid
paras
167 & 168.
[42]
Ibid
para
102.
[43]
2018
(3) SA 95
(SCA).
[44]
Ibid
para
3.
[45]
Ibid
para
9.
[46]
Ibid
para
10.
[47]
Ibid
para
12 & 13.
[48]
Ibid
para
14.
[49]
Ibid
para
20.
[50]
Judgment of
the South Gauteng High Court Johannesburg under case no 2008/39429,
delivered on 3 April 2009.
[51]
Wierda Road West
Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc para 22 & 23 of
the judgment.
[52]
Ibid
paras
28 & 29; see also
Odendaal
v Ferraris
2009
(4) SA 313 (SCA).
[53]
See
para 15 of the Schedule of Particulars to the Lease and clause 11 of
the lease agreement, vol 1 p 42 & p 51.
[54]
Ibid
p 51.
[55]
Vol 4,
p 534/5-10.
[56]
Vol 2,
p 323/14-25.
[57]
Vol 1,
p 98.