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[2022] ZAFSHC 150
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Visagie Raymond Roelof v Kalema Holdings (Pty) Ltd (5042/2021) [2022] ZAFSHC 150 (19 May 2022)
SAFLII
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Certain
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5042/2021
In
the matter between:
ROELOF
RAYMOND VISAGIE
1
st
Applicant
THERESE
ELSIE IMMELMAN
2
nd
Applicant
and
KALEMA
HOLDINGS (PTY) LTD
1
st
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
2
nd
Respondent
BEFORE
:
CHESIWE,
J
HEARD
ON
:
17
FEBRUARY 2022
DELIVERED
ON
:
19 MAY 2022
[1]
The Applicants approached court with an application to interdict and
restrain
the First Respondent from conducting business on a property
that is zoned for residential purpose and use. The First Respondent
opposed the application.
[2]
The Applicants, both reside at [....]Champion Street, Lillyvale
Bloemfontein.
[3]
The First Respondent is Kalema Holdings (Pty) Ltd with registration
number:
2011/143120/70 a private company duly registered company duly
registered and incorporated in terms of the Statutes of RSA with
business address at Plot 83 Mactin Road, Shannon, Bloemfontein.
[4]
It is common cause that the title deed of the Applicants with
Registered
Title
Number: [....] was
registered in their names annexure “
FA1”
(page 30)
of the founding affidavit and the First Respondent title deed with
registered number T5388/2019. It is further common
cause that the
Applicants property and First Respondents property form part of a
sectional title scheme known as Western Place,
in that the Applicants
property is situated adjacent to the First Respondent’s
property.
[5]
The court has to determine, whether the First Respondent’s
conduct
is justified in conducting business on land that was zoned
for residential purposes and whether the Applicants have met the
requisite
for the granting of a final interdict, namely:
a)
a clear right on the part of the Applicant;
b)
an injury committed or reasonably apprehended;
c)
the absence of any other satisfactory remedy available to the
Applicant;
d)
whether the Applicants have
locus standi
.
BACKGROUND
[6]
The First Respondent purchased the property in dispute in 2019. The
First
Respondent used the property in contravention of zoning of
property in terms of the Bainsvlei Town Planning Scheme (B.T. P. S),
in that the property was used for purposes of operation as a
guesthouse, functions venue, conference and/or as restaurant. The
Applicants submitted a letter of complaint to the Mangaung
Metropolitan Municipality that they did not consent to the amendment
of usage of the property as a guesthouse (annexure RA1, RA2 and RA3).
The Applicants discovered that the previous owner of the
property had
lodged a letter in which the First Applicant’s name was spelt
incorrectly and the signature was forged. The
Applicants denied that
they gave the previous owner of the property consent to run it as a
business.
[7]
The Applicants under case number 5042/2021 brought an application on
29
October 2021. The matter did not proceed, but was postponed to 13
January 2022 and on this date, it was further postponed to 17
February 2022 and arguments proceeded before this court.
[8]
Counsel on behalf of the First Respondent brought an application for
condonation
for the late filing of the answering affidavit. The First
Respondent on the founding affidavit explained that there were
documents
that were needed by his legal representative in order to
draft the answering affidavit, including to appoint a Town Planner to
assist with the rezoning application. However, due to lack of funds,
a Town Planner could not be appointed on time.
[9]
The answering affidavit should have been delivered within 15 court
days
of the notice of intention to oppose. However, it was filed on
25 January 2022 (according to the court stamp) and the court order
dated 13 January 2022.
[10]
The First Respondent was ordered to file the condonation application
on 21 January 2022.
CONDONATION
[11]
When considering an application for condonation, factors to be
weighed by the court include,
the degree of non-compliance, the
explanation thereof, the importance of the case and the avoidance of
unnecessary delay in the
administering of justice.
[12]
In
Uitenhage
Transitional Local Council v South African Revenue Service
[1]
,
the court held as follows:
“
Condonation is not
to be had merely for the asking, a full, detailed and accurate
account of the causes of the delay and their effect
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, and duration and extent
of any obstacle on which reliance is placed,
must be spelled out.”
[13]
The First Respondent in the condonation application, the founding
affidavit thereof explained
that:
“
On or about 10
January 2022 I consulted with my legal representative and provided
the documents, however the he (sic) informed me
that these are old
documents and I had to request and provide the latest certificate. I
requested the same, however I have not
obtained all the relevant
documents. My legal representative informed me that we will have to
appoint a Town Planner to assist
with a rezoning application, which
at this time, I did not have the sufficient funds to pay.”
[14]
Though the answering affidavit should have been filed within 15 court
days after the intention
to oppose was filed, it was filed on 18
January 2022, of which the 15 court days would have been on or about
12 December 2022.
The filed answering affidavit was neither signed
nor commissioned, however, a signed and commissioned copy was hand up
in court.
[15]
As this matter involves the interests of other litigants as well as
continuous litigation,
it is advisable and of absolute certainty
that, the Applicants would want this matter to be resolved speedily.
I see no reason
not to accept the condonation application. The
explanation in the First Respondent’s founding affidavit is
clear and gave
sufficient reasoning of the delay and as well as the
degree of lateness.
[16]
In the
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[2]
, Majiedt AJA stated as
follows:
“…
a court
may grant condonation if it is satisfied that the three requirements
set out therein have been met.”
At
para 35, it is further highlighted that “the interests of
justice play an important role.”
[17]
In considering a condonation application, the court has the
discretion to be exercised
judicially upon consideration of all facts
and in essence it is a question of fairness for both parties.
[18]
The court cannot ignore the fact that the First Respondent’s
was faced with the predicament
of his financial situation in
obtaining a Town Planner as well as the documents that were needed to
draft the answering affidavit.
[19]
In my view, the First Respondent has given a detailed explanation of
the delay as the lateness
is only about 30 court days. The First
Respondent’s explanation is reasonable and acceptable. The
relief sought by the First
Respondent should therefore be granted.
The Applicants will not be prejudiced by such relief.
DISPUTE
[20]
I now turn to deal with the main issue in dispute, that is the
application to restrain
and interdict the First Respondent from using
the property for business purposes.
[21]
Counsel on behalf of the Applicants, Adv. van der Merwe in oral
argument submitted that
it is common cause that the First Respondent
conducts events and functions at the guesthouse. Counsel submitted
that the use of
the property is illegal for that purpose as the
property is zoned for residential purposes. Counsel made reference to
several authorities
that deal with such matters, including the 12
opposed matters in this Division which have dealt with businesses
that are run from
residential properties, especially in the form of
guesthouses. Counsel concluded that the Applicants have made out a
case for the
relief sought and the court should grant the Applicants
a final interdict.
[22]
Counsel on behalf of the First Respondent, Adv. Lubbe submitted in
oral argument that the
Applicants approached court, not with clean
hands as the property was purchased in 2014 and was previously
conducting business
as a guesthouse. He mentioned that the Applicants
are also running a business from their property. The photos submitted
as annexures
“
LT2”
and “
LT3”
(pages 80 to 84), all depict that the Applicants also run a
guesthouse from their premises. Counsel submitted that instead of a
final interdict, the court should grant an interim interdict,
suspended for a reasonable time to allow the First Respondent time
to
apply for the rezoning of the property.
[23]
The
principles governing the requirement for a final interdict have been
settled in
Hotz
and Others v University of Cape Town
[3]
as follows:
“
An applicant for
such an order must show a clear right, an injury actually committed
or reasonably apprehended, and the absence
of a similar protection by
any other ordinary remedy.”
[24]
The First Respondent in opposing this application, indicates that it
wishes to apply to
the Second Respondent for the rezoning of the
property. The First Respondent claims that it was not aware that the
property had
not been rezoned for use as a business. The First
Respondent contends that when it bought the property it was already
conducting
business as a guesthouse. The First Respondent further
contends that there are numerous businesses which are conducting
business
in the same area, more especially in Ray Champion Street
including the Applicants who also conduct a business from their
property.
[25]
The First Respondent purchased the property in terms of the Deed of
Transfer dated 30 April
2019. Clause (b)(ii) states that
“
the said unit is
subject to or shall benefit by any alterations to the building or
buildings or to a section or to the common property
shown on the said
sectional plan.”
[4]
[26]
The Town Planning Scheme according to annexure “
FA4”
on page 40 states as follows:
“
ZONING AND
PERMISSIBLE USES: PORTION 1 OF THE FARM WESTERN SPITSKOP 1399,
BLOEMFONTEIN
In terms of the approved
Bainsvlei Town Planning Scheme (B.T.P.S), the above-mentioned
property is zoned ‘Holdings’
and may only be used for the
following purposes:
Dwelling houses and
agricultural purposes.”
[27]
The First Respondent could not have been ignorant to such conditions,
clearly set out as
in the Bainsvlei Town Planning Scheme.
For
the First Respondent to oppose on the grounds that the property was
bought already a guesthouse at that stage, is a growing
concern. The
whole transaction at that stage was wrong and the saying that two
wrongs don’t make it right runs through here.
[28]
The municipality in inserting such conditions as well as the title
deed, is to avoid people
taking the law into their own hands and
doing as they please. These conditions are in place for a purpose and
must be respected
and abided with, for compliance with the local
authority’s rules, regulations and legislations.
[29]
The First Respondent is fully aware that the Applicants complained
about the alleged letter
of consent which was submitted to the
municipality. The Applicants denied that such a letter was submitted.
They further raised
an allegation that the letter, annexure “
RA1”
(page 17) was forged. According to the First Applicant, he denies
writing the letter nor signing it. That conduct in itself already
indicated that things were done illegally. The Applicants in
their papers showed that they have on several occasions alerted
the
municipality about the alleged and fraudulent letter.
[30]
The following was noted in the correspondence from the municipality
addressed to Messrs
Maarten Potgieter Surveyors
annexure “
RA3”
(page 119), dated 01 September 2014
which reads as follows:
“
APPLICATION FOR
THE REZONING OF PORTION 1 OF THE FARM WESTERN SPITSKOP 1399, CORNER
OF LUCAS STEYN STREET AND RAY CHAMPION STREET,
RAYTON, BAINSVLEI,
BLOEMFONTEIN
You are hereby informed
that the above mentioned application cannot be considered at this
stage due to the fact that the application
is incomplete. There is a
sectional title scheme registered against this property therefore you
must submit consent from the co-owner.
The co-owner must take
note of the following:
1.
With the Sectional Title Scheme being registered on this property,
the proposed
rezoning will have an effect on the municipal property
rates and he will be affected;
2.
Should it happen that he or his successors want to pursue business in
future,
a permission will not be granted.”
[31]
Already in September 2014, the Municipality
indicated that the application could not be considered, due to
incomplete documents.
It still remained a legal duty of the
First Respondent when it bought the property to ensure that the paper
work was above board,
including confirming with the previous owner
whether the guesthouse was managed within the confines of the law.
[32]
The Applicants disputed that there is a business being conducted from
their property. The
First Applicant in his founding affidavit
explained that he is a broker and attends to clients at their homes.
The First Applicant
further explained that the boards on the gate of
the property are for purposes of marketing and advertising and that
they do not
run any functions, events, conferences from their
property
[33]
As correctly stated by Counsel on behalf of the Applicants, there has
been in the past
months in this Division, inundated applications
similar to this one before this court. Counsel submitted authorities
of this Division
of which, about six matters were granted in favour
of the Applicants. This issue is indeed becoming prevalent and the
court needs
to come to the assistance of litigants where the other
party is not complying with local authority legislation.
[34]
In
Cornelia F de Wenaar & 2 others v Mark Semple & 2
Others
Case number 2825/2019, Jordaan, J emphasised the legal
position that breach of zoning provisions constituted a sufficient
injury
to qualify as sufficient harm to justify the granting of a
final interdict.
[35]
It is trite that the granting of a final interdict is more stringent
than those for the
interim interdict, because of the far-reaching
consequences of such an order. Therefore, the requirements for a
final interdict
are accepted in our courts as a clear right, injury
committed or reasonable apprehended and nor suitable or alternative
remedy.
(Hotz
supra
)
[36]
I will not deal with these requirements individually. The First
Respondent in zoning the
property without consent of the Applicants
nor of the municipality in itself constitutes an injury as the
Applicants obviously
purchased the property with the expectation of a
peaceful neighbourhood. The Applicants are therefore entitled to take
legal steps
to ensure that their property and its value is not
diminished unlawfully.
[37]
The
Applicants have shown they are the owners of their property in terms
of the Title Deed attached as annexure “
FA1”
(page 28). The Applicants have a clear recognisable interest as
owners of the property as well as the enforcement of the provisions
of the Bloemfontein Town Planning Scheme. Therefore, the
locus
standi
of the Applicants has been proven in terms of the title deed. In
BEF
(Pty) Ltd v Cape Town Municipality & Others
[5]
, the court said the
following:
“
Since a
town-planning scheme is intended to operate, not in the general
public interest, but in the interest of the inhabitants
of the area
covered by the scheme, or at any rate those inhabitants who would be
affected by a particular provision, an owner of
the land in the area
has
locus standi
.”
[38]
In this instance, the municipality informed the parties that the
rezoning will have an
effect on the municipality rates and they will
be affected. In any event, the Applicants made it clear that an
application
for rezoning will not be supported.
[39]
It is therefore clear that the First Respondent in failing to adhere
to the provisions
of the Town Planning Scheme, continues to conduct
the business on the mentioned property unlawfully. The court cannot
condone nor
ignore that the conduct of the First Respondent is
illegal, thus undermining the rule of law.
[40]
The issue that the order be suspended temporarily would not remedy
the situation as the
court would therefore be encouraging the First
Respondent to proceed in its unlawful conduct nor is there a
counter-application
for the relief sought.
[41]
The Applicants have indeed met the requirements for a final
interdict. Having also taken
into consideration authorities from this
Division in matters of this nature, which have indeed become
prevalent, the Applicants
ought to be granted the relief sought.
[42]
With regard to costs, it is appropriate that
costs follow the successful party.
[43]
Accordingly, I order as follows:
1.
The First Respondent
is restrained and interdicted from using or allowing any other person
to use the subject property for
any use other than that authorised by
the zoning of the property, being
Holdings
(Dwelling Houses and agricultural purposes)
in terms of the Bainsvlei Town Planning Scheme, the subject property
being: “Section No. 3 as shown and more fully described
on
Sectional Plan No. SS 181/2005 in the scheme known as WESTERN PLACE
in respect of the land and buildings or buildings situated
at PORTION
1 OF THE FARM WESTERN SPITSKOP 1399, DISTRICT BLOEMFOTEIN, PROVINCE
FREE STATE.”
2.
The First Respondent is ordered to forthwith remove any and
all
signage referring to any business, consultancy, office or use
contrary to
the zoning of the property,
being
Holdings (Dwelling Houses and agricultural purposes
) in
terms of the Bainsvlei Town Planning Scheme.
3.
The First Respondent is ordered to pay the costs of this application
on a party and party scale.
CHESIWE,
J
On
behalf of the Applicants:
Adv. R van der Merwe
Instructed
by: Blair
Attorneys.
BLOEMFONTEIN
On
behalf of the First
Respondent:
Adv. EG Lubbe
Instructed
by:
McHardy
& Herbst Inc.
BLOEMFONTEIN
[1]
2004 (1) SA 292
SCA at para 6
[2]
2010 (4) SA 109
SCA at para 33
[3]
2017
(2) SA 485
SCA at para 29
[4]
Page 44 of the Founding Affidavit.
[5]
1983 (2) SA 387
(C) at 457 E