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[2022] ZAFSHC 338
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Jacobs and Others v Buschow and Others (2021/2022) [2022] ZAFSHC 338 (28 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2021/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SALOMON
JACOBUS JACOBS
First Applicant
ANRA
FABER Second
Applicant
CORIZE
VAN
RENSBURG Third
Applicant
DANIEL
PIERRE
HUGO Fourth
Applicant
And
KARL
ERICH BUSCHOW
First
Respondent
KAREN-LYNN
BUSCHOW Second
Respondent
MARIGOLD
PLACE
Third
Respondent
MANGAUNG
METROPOLITAN Fourth
Respondent
MUNICIPALITY
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
11
AUGUST 2022
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII on
28
NOVEMBER 2022. The date and time for hand-down is deemed to be
on 28 NOVEMBER 2022 at 12h00.
Introduction
and relief sought
[1]
The applicants seek an order to interdict and restrain the First,
Second and Third
Respondents from conducting or allowing any other
person from conducting a business or utilizing erf [....],
Bloemfontein Ext [....],
Free State Province, currently being held in
terms of Title Deed [....], commonly referred to as [….]
L[....]Street, D[....],
Bloemfontein (the property) for any purpose
other than the zoning of the property, being ‘
Single
Residential 2
”. The application is opposed by the First,
Second and Third Respondents (the Respondents).
Facts
[2]
The Applicants are all owners of properties situated at
L[....]Street, D[....] Bloemfontein.
The First and Second Respondents
are the registered owners of the property which is the subject of
this dispute.
[3]
The applicant’s properties are situated in close proximity to
the property of
the First and Second Respondents. The property of the
First and Second Respondent is situated in a residential
neighbourhood. The
applicants contend that the First and Second
Respondents allow the Third Respondent to conduct a business of frail
care known as
Marigold Place from their (First and Second Respondent)
property in contravention of the Bloemfontein Town Planning Scheme,
No
1 of 1954. (the Scheme).
[4]
The Applicants contend that the property is zoned as “Single
Residential 2’
which reflects the current zoning and the
allowed limitation of the use of the property as a ‘dwelling
house’. The
essence of the case of the applicants is that the
property is used as a business contrary to the Scheme and such use
will ultimately
have a negative influence on the market value of the
Applicants’ properties.
[5]
The applicants move for a final interdict. A final interdict is an
order based upon
the final determination of the rights of the
parties
[1]
. The requirements for
a final interdict are as follows:
a)
A clear right;
b)
An injury actually committed or
reasonably apprehended;
c)
The absence of similar protection by any
other remedy.
DISPUTES
[6]
The Respondents oppose the application on the following grounds:
a)
Failure to join all the residents and/or
inhabitants of the property as respondents;
b)
Failure to join the entity known as The
Tree Tops ( (Pty) Ltd as a respondent;
c)
That the relief sought amounts to an
eviction and that the Applicants ought to have complied with the
provisions of Prevention of
Illegal Eviction from Unlawful Occupation
of Land Act, 19 of 1998;
d)
That the Second and Third Applicants do
not have locus standi;
e)
That the Respondent does not conduct
business from the property;
That
the First and Second Applicants have applied for the re-zoning of the
property.
Non
Joinder and applicability of Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act, 19 of 1998.
[7]
The respondents’ first ground of opposition is non-joinder of
the other residents/inhabitants
of the property as well the Tree
Tops(Pty) Ltd. The contention of the respondents is that the said
residents and Tree Tops have
substantial interest in these
proceedings. With reference to the residents, more so that the order
sought, so it is submitted,
has the effect of evicting them from the
property. It is further submitted that the premises were utilized by
the Third Respondent
in conjunction with an entity, Tree Tops.
[8]
The question of non-joinder has been dealt with In
JSC
v Cape Bar Council
:
[2]
“
[12]
It has by now become settled law that the joinder of a party is
only required as a matter of necessity – as opposed to a matter
of convenience – if that party has a direct and substantial
interest which may be affected prejudicially by the judgment
of the
court in the proceedings concerned (see eg Bowring NO v Vrededorp
Properties CC
2007 (5) SA 391
(SCA) para 21). The mere fact that a
party may have an interest in the outcome of the litigation does not
warrant a non-joinder
plea. The right of a party to validly raise the
objection that other parties should have been joined to the
proceedings, has thus
been held to be a limited one (see eg Burger v
Rand Water Board
2007 (1) SA 30
(SCA) para 7; Andries Charl Cilliers,
Cheryl Loots and Hendrik Christoffel Nel Herbstein & Van Winsen
The Civil Practice of
the High Courts of South Africa 5 ed vol 1
at 239 and the cases there cited.)”
[9]
At the heart of this application is an order to restrain the
respondents from unlawfully
utilising a residential property for
business purposes. At no stage do the applicants seek that any
inhabitants of the property
be evicted. The Notice of Motion bears
testimony to this. The applicants do not seek relief for the eviction
of the residents residing
on the property. What the applicants seek
is only a restraining order prohibiting unlawful use for business
purposes. Act
19 of 1998 does not find application in these
proceedings. It is true that the residents may have an interest in
the outcome of
these proceedings but that on its own does not entitle
them to be joined. Insistence on the joinder of the residents, is
misplaced.
[10]
Tree Tops(Pty) Ltd is an entity with the registered address which is
the same with the address
of the property in issue. The First and
Second Respondents admit that they are the owners of the property in
dispute. The Second
Respondent is listed on Annexure MAR4 attached to
the First Respondent’s affidavit as the Director of Tree Tops.
It is undisputed
that the Second Respondent was properly served with
this application. As a sole Director of Tree Tops, she became aware
of this
application. Had she deemed it fit to involve Tree Tops in
these proceedings, she would have done the necessary as a Director
and
approached this court to allow its intervention. I am of the
considered view that Tree Tops is aware of these proceedings and its
joinder is not necessary. The defence of non-joinder stands to be
dismissed.
Locus
Standi
[11]
It is common cause that the Second and Third Applicants are not the
sole owners of their properties.
This however does not preclude them
from protecting their proprietary rights by seeking to enforce
statutorily conferred rights
emanating from the zoning restrictions.
In my view the relief the applicants seek, does not prejudicially
affect any person who
might own the properties jointly with the-
Second and Third Applicants. On the contrary the relief sought will
benefit the joint
owners.
[12]
A land owner has locus standi to protect his/ her proprietary rights.
In
Walele
v City of Cape Town and Others
[3]
the court said the following:
“
The
result of a zoning scheme is thus to restrict the rights of all
owners in an area. Yet zoning schemes also confer rights on
owners,
because owners are entitled to require that neighbouring owners
comply with 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. Owners
in the area
are also entitled to be heard when land is re-zoned. A zoning scheme
is therefore a regulated system of give and take:
it both limits the
rights of ownership but also confers rights to owners to expect
compliance by neighbours with the terms of the
mutually applicable
scheme. The result is that where an owner seek to use his property
within the terms of the zoning scheme, it
cannot be said that the
rights of surrounding owners are affected materially or adversely.”
I
am unable to find that the Applicants in this case cannot institute
interdictory proceedings against the Respondents without joining
the
co-owners.
Pending
application for re-zoning by First and Second Respondents
[13]
The Respondents place reliance on the fact that the First and Second
Respondents have applied
for the re-zoning of the property. In my
view this assertion can be disposed of by posing this question:
Can
a person who has applied for a licence to possess a firearm carry it
before the approval of the licence.
The simple answer is no. The
same applies in this case. The Scheme restricts the use of a dwelling
house for the purpose of the
business. The fact that the application
for re-zoning has been lodged does not exempt the applicants from
complying with what the
law requires. It is in fact irrelevant. The
fact that an application for re-zoning has been lodged does nothing
to the illegality
sought to be prevented. That the law is being
breached allows the applicants to move for final interdictory relief.
The application
for re-zoning has not been granted and consequently
the use of the property other than as a dwelling is unlawful.
The
Third Respondent does not conduct a business from the property per se
as it is a non-profit organisation.
[14]
The Respondents deny that the property is used as a business. The
Respondents, however, admit
that a frail case facility/hospice/ old
age home/old age patient care facility under the name and style of
Marigold Place, which
primarily provides accommodation to a number of
mainly elderly members of society is operated from the property. The
Third Respondent
as a principal operator, in conjunction with The
Tree Tops operates the facility.
[15]
The involvement of The Tree Tops in the facility has not been
explained at all by the Respondents.
I agree with Counsel for the
Applicants in its Heads of Argument where the following is said:
“
[71]
It must be accepted that the proprietors of the Third Respondent draw
salaries from operations of the Third Respondent and
that the Third
Respondent employs staff to attend to the functions of the Third
Respondents staff which members are paid salaries.
[72]
Although The Third Respondent as an entity may not in the strict
sense of the word be conducting business ‘for profit’,
it
none the less has all the attributes of a business and effectively
conducts business from the property….”
[16]
The Respondents downplay the actual business conducted on the
premises. So many questions remain
unanswered. The involvement of The
Tree Tops. Who and how many employees the Third Respondent and Tree
Tops have. What the working
relationship between the Third Respondent
and The Tree Tops is. Where the salaries of both entities come from.
The fact that the
Respondents insisted that The Tree Tops be joined
as failure, according to the version of the Respondents, to “
join,
the joint operating entity of the frail care facility/hospice/ old
age home/ old age patient care facility
clearly demonstrate that
the operations by the Third Respondent and The Tree Tops constitute
operating a business. On their own
version, business is being
conducted on the premises.
[17]
It is trite that the Scheme and the restrictive conditions of such a
scheme inure for the benefit
of the surrounding inhabitants in the
area. The owner of the property cannot perform activities on his own
property in contravention
of the Scheme. The Scheme is in the
interests of the class of persons of which the applicants are
members. The court in
Intercape
Ferreira Mainliner vs. Minister of Home Affairs
[4]
said:
“
The
immediate neighbours have a special interest, as an affected class in
upholding the zoning scheme”.
Non-compliance
with the scheme constitutes an attack on the protected interests of
property owners which constitute injury worthy
of granting a final
interdict. I am of the view that by conducting the above mentioned
facility on the property infringes the clear
rights of the
applicants. There is no alternative remedy or protection available to
them.
[18]
The Respondents request that this court should consider suspending
the order for 6 to 10 months
should it be inclined to grant the
interdict. The Supreme Court of Appeal in
Emilel
Investments(Pty) Ltd v Silvestry and Others
[5]
after confirming the illegal use of the property upon considering
whether the interdict should be suspended observed as follows:
“
Nor
can the outcome of such application be predicted with any confidence.
Suspending any order would merely prolong the appellant’s
illegal conduct.”
[19]
Our courts have consistently refused to suspend orders where the
suspension would tend to perpetuate
any illegality. In my view each
case must be viewed on its own merits. The fact that the Respondents
have applied for the re-zoning
of the property plays little role in
my decision whether to exercise my discretion or not. The reason is
that there is no evidence
before me indicating the time frame it
would take for the finalisation of the application. I further take
note that there are objections
lodged against the said re-zoning
application. The end result is that the application may take a long
time to finalise. I however
take note that the facility is used for
the vulnerable elderly citizens of our country. It behoves this court
to bear that in mind
in granting the order. There defences raised
have no merit and the applicants as successful parties are entitled
to their costs.
Order
[20]
The following order is made: -
1.
The First, Second and Third Respondents
are interdicted and restrained from conducting or allowing any other
person to conduct a
business from or use erf [....], [….]
L[....]Street, D[....], Bloemfontein, for any use than the zoning of
the property,
being “Single Residential 2”;
2.
The First, Second and Third Respondent
are ordered to pay the costs of this application, jointly and
severally, the one to pay and
the others to be absolved;
3.
The implementation of the order in
paragraph 1 above is suspended until 12 December 2022.
P.E.
MOLITSOANE, J
On
behalf of the Applicants: Adv.
R. Van der Merwe
Instructed
by: Blair
Attorneys
Bloemfontein
On
behalf of the Respondents:
Adv.
C. Snyman
Instructed
by: McIntyre
& Van der Post
Bloemfontein
Ref:
BAB005/A VENTER/ Ijb
[1]
Harms D. Civil Procedure in the Superior Courts( lexis Nexis ,
Durban 1990) Service Issue 45, April 2012 at A-37.
[2]
2013(1)
SA 170 (SCA)
[3]
2008(6) SA 129 cc at para 130.
[4]
2010 (5) SA 367
(WCC) at 401 B
[5]
(080/2012)[2012] ZASCA 181.