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Investec Property (Pty) Limited v China City Limpopo (Pty) Limited and Others (2168/2020) [2020] ZALMPPHC 35 (19 June 2020)

82 Reportability
Land and Property Law
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Brief Summary

Lease Agreements — Cancellation — Urgent application for declaratory order confirming cancellation of lease agreements — Applicant alleging unlawful use of property by First Respondent in contravention of zoning regulations — First Respondent conducting retail activities on property zoned "Industrial 1" without necessary municipal consent — Applicant's cancellation of main lease and sub-lease upheld — First Respondent's unlawful occupation and activities warranting eviction — Mandamus order sought against Municipality to enforce compliance with relevant legislation.

Comprehensive Summary

Summary of Judgment


Introduction


This was an urgent application in the Limpopo Division of the High Court (Polokwane) in which the applicant sought declaratory, interdictory, eviction, and mandatory relief arising from the alleged unlawful use of immovable property and associated breaches of lease agreements.


The applicant was Investec Property (Pty) Limited, the registered owner of the property. The first respondent was China City Limpopo (Pty) Limited, the occupier conducting business from the property. The second respondent was Devland Cash and Carry (Pty) Limited, the original tenant under a “main lease” with the applicant and the sub-lessor under a “sub-lease” to the first respondent. The third respondent was the Polokwane Municipality, against whom a mandamus was sought to enforce town planning, building, and related regulatory measures.


The application was opposed only by the first respondent. The second respondent filed an affidavit supporting the applicant, and the municipality did not participate in the proceedings despite relief being sought against it.


The dispute concerned the cancellation of the main lease and sub-lease, the first respondent’s continued occupation after cancellation, and the legality of the first respondent’s trading activities on the property in light of the property’s “Industrial 1” zoning under the applicable town planning scheme and related legislation, including alleged health and safety non-compliance.


Material Facts


A lease agreement (the main lease) was concluded on 24 April 2013 between the applicant (as lessor) and the second respondent (as lessee) in respect of Erf 5678, Pietersburg Extension 12 Township, Polokwane. Under the main lease, the second respondent’s right of use was expressly subject to the condition that such use would not contravene applicable town planning conditions. The main lease also permitted subletting, but made clear that subletting would not diminish the second respondent’s obligations to the applicant. The main lease further prohibited contravention of any law, bylaw, ordinance, proclamation, statutory regulation, or licensing conditions affecting occupation or operations.


A sub-lease was concluded between the second respondent and the first respondent on 21 February 2014, with the main lease incorporated as an annexure. The first respondent acknowledged awareness of the main lease terms. The sub-lease recorded that the premises would be used for a “Wholesale and Retail business”, and required the first respondent (at its own cost) to obtain municipal approval for the business and to refrain from illegal or improper use. The applicant consented to the sub-lease on or about 25 February 2014.


It was common cause that the subject property was zoned “Industrial 1” under the Polokwane / Perskebult Town Planning Scheme, 2016. The primary land uses permitted under that zoning were described in the judgment as including warehouse, builder’s yard, mortuary, industry, public garage, service industry, panel beating, and scrap yard. Although the scheme also provided for certain secondary uses requiring municipal special or written consent, it was common cause that no such special or written consent had been granted in this case.


It was also common cause (and expressly accepted in the answering affidavit) that the first respondent was using the property for retail activities and operating shops from the premises. The town planner engaged by the applicant investigated the zoning and concluded that the operation of “shops” was not permitted under the “Industrial 1” zoning and that no special consent had been obtained.


The applicant also relied on an occupational health and safety audit report reflecting extensive non-compliance (including fire safety, emergency exits, electrical safety, waste management, and hygiene), and the judgment recorded that the municipality conducted its own investigation and compiled a report listing shortcomings in relation to health, safety, and fire prevention.


On 7 February 2020, the applicant’s attorneys issued a breach notice to the first and second respondents, placing the second respondent in breach under the main lease and allowing 10 days to remedy. On 11 February 2020, the second respondent issued a breach notice to the first respondent. The first respondent’s attorneys responded on 18 February 2020, denying the breaches and asserting that approvals had been obtained.


The applicant purported to cancel the main lease on 26 February 2020 on the basis that the identified breaches had not been remedied, and the second respondent cancelled the sub-lease on 28 February 2020. The second respondent did not challenge the applicant’s cancellation and vacated the premises. The first respondent, however, remained in occupation, which the applicant alleged to be unlawful following cancellation.


Legal Issues


The court identified four issues for determination.


The first was whether the first respondent was in breach of the sub-lease, including through contraventions of the town planning scheme and alleged health and safety non-compliance. This required an application of legal and contractual provisions to largely common-cause facts about the use being conducted on an “Industrial 1” zoned property.


The second issue was whether the main lease and sub-lease were lawfully cancelled. This concerned the application of contractual cancellation rights to the established breaches and the effect of those cancellations on rights of occupation.


The third issue was whether, following cancellation, the applicant was entitled to evict the first respondent from the property. This involved the application of property and contractual principles to the post-cancellation factual position.


The fourth issue was whether the applicant had made out a case for a mandamus compelling the municipality to enforce the provisions of the scheme, bylaws, and the referenced legislation, including steps toward prosecution. This required a value-laden assessment of whether the municipality bore an enforceable duty in the circumstances and whether coercive relief was justified.


The first respondent further contended that there were material disputes of fact incapable of resolution on motion, raising a procedural issue concerning the appropriate approach to disputes in motion proceedings.


Court’s Reasoning


The court approached the matter on the basis that the zoning position and the first respondent’s retail use were effectively undisputed. It emphasised the binding force of a land use scheme and the prohibition on using land for purposes other than those provided for, referencing the statutory framework invoked by the applicant (including SPLUMA provisions recording that adopted and approved land use schemes have the force of law and bind land owners and users).


On the facts, the court held that the first respondent conducted retail trade/shops on land zoned “Industrial 1”, while the listed primary rights did not include shops, and no municipal special or written consent had been granted. The court treated this as a contravention of the scheme and SPLUMA, and therefore as conduct prohibited both by the legislative framework and by the express terms of the main lease and sub-lease prohibiting contraventions of laws and town planning controls.


In relation to the contractual consequences, the court reasoned that once the contravention of the scheme was established, a breach of the sub-lease followed. The judgment recorded that counsel for the first respondent conceded that a finding of contravention would establish breach. The court accordingly found that the first respondent was in breach of the sub-lease, and that this breach also rendered the second respondent in breach of the main lease, given the structure of the contractual obligations and the main lease terms providing that subletting would not affect the second respondent’s obligations.


The court also addressed the first respondent’s reliance on alleged municipal approvals in relation to building standards, noting the submission that any such approval would remain subject to the zoning constraints. On that reasoning, the court accepted that the unlawful use could not be validated merely by reliance on approvals that did not change or override the zoning position.


As to the alleged health and safety contraventions, the court accepted the occupational health and safety audit report, including the severe non-compliance reflected, and additionally referred to the municipality’s own investigative report annexed to the second respondent’s affidavit. The court treated these contraventions as further grounds supporting breach of the sub-lease.


On the asserted disputes of fact, the court applied the established motion-proceedings approach described in Soffiantini v Mould 1951 (3) SA 307 (O), adopting a robust and common-sense approach. It concluded that there were no material disputes of fact preventing determination on the papers because the key facts—zoning, absence of special consent, and the fact of retail use—were not genuinely in dispute and had been conceded.


The court then turned to the requirements for final interdictory relief, applying Setlogelo v Setlogelo 1914 AD 221. It held that the applicant, as registered owner, had a clear right to enforce the scheme and related bylaws and legislation, as well as to enforce contractual provisions preventing unlawful use. It treated the contravention of the scheme and bylaws as constituting harm in itself because schemes operate for the benefit of property owners in the area, and further found that the unlawful activities created substantial risks translating into irreparable harm if relief were not granted. The court also found an absence of an adequate alternative remedy because the first respondent remained in occupation and persisted in the unlawful activities despite cancellation and demand.


In motivating enforcement and the mandamus, the court relied on authority emphasising legality and enforcement of town planning schemes, including statements in City of Tshwane Metropolitan Municipality v Grobler 2005 (6) SA 61 (TPD) and United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T) concerning municipal duties to enforce schemes and the impropriety of a lenient approach that could encourage continued illegality. It also referred to Lester v Ndlambe Municipality 2015 (6) SA 283 (SCA) for the proposition that the law does not countenance ongoing illegality, particularly where it constitutes an offence, as this would undermine legality and the rule of law.


Having found valid cancellation and unlawful occupation, the court held eviction to be warranted. It granted the mandamus against the municipality directing enforcement of the scheme, bylaws, SPLUMA, and the building standards legislation, including commencement of prosecution steps against the first respondent.


Outcome and Relief


The court granted the application in full. It issued declaratory orders confirming that the main lease (24 April 2013) between the applicant and second respondent and the sub-lease (21 February 2014) between the first and second respondents were cancelled.


It interdicted the first respondent from conducting retail activities on the subject property not permitted under the “Industrial 1” zoning and in contravention of the town planning scheme, municipal planning bylaw, SPLUMA, the Occupational Health and Safety Act (as referenced in the judgment), its regulations, and other relevant municipal bylaws.


It ordered the eviction of the first respondent and all persons holding occupation through it, requiring them to vacate within 30 days of the order, failing which the sheriff (with SAPS assistance if necessary) was authorised and directed to evict them.


It granted a mandamus directing the municipality to enforce the scheme and bylaws relating to electricity, hygiene, health and safety, SPLUMA, and the National Building Standards Act (as described in the order), and to commence prosecution steps against the first respondent in terms of those legislative provisions.


Costs were awarded against the first respondent on the basis that it was the opposing party, and the costs order expressly included the costs of two counsel.


Cases Cited


Pick ’n Pay Stores Limited and Others v Teasers Comedy and Review CC and Others 2000 (3) SA 645 (W)


City of Tshwane Metropolitan Municipality v Grobler 2005 (6) SA 61 (TPD)


United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T)


Johannesburg City Council v Bernard Lewis Construction 1991 (2) SA 239 (W)


Lester v Ndlambe Municipality 2015 (6) SA 283 (SCA)


Soffiantini v Mould 1951 (3) SA 307 (O)


Setlogelo v Setlogelo 1914 AD 221


Legislation Cited


Spatial Planning and Land Use Management Act 26 of 2013


National Building Regulations and Building Standards Act 103 of 1977


Occupational Health and Safety Act 85 of 1993 (as referenced in the judgment)


Town Planning and Township Ordinance 15 of 1986


Adjustment of Fines Act 101 of 1991


Polokwane Municipal Planning Bylaw, 2017


Polokwane / Perskebult Town Planning Scheme, 2016


Rules of Court Cited


No specific rules of court were expressly cited in the judgment.


Held


The court held that the first respondent’s use of the property for retail “shops” was not permitted under the property’s “Industrial 1” zoning in terms of the applicable town planning scheme, and that no municipal special or written consent had been obtained to authorise such use. This contravention established a breach of the sub-lease, which in turn implicated the second respondent’s obligations under the main lease.


The court held that the applicant had lawfully cancelled the main lease, and that the sub-lease was also cancelled, with the consequence that the first respondent’s continued occupation was unlawful and justified eviction.


It further held that the requirements for a final interdict were satisfied, given the applicant’s clear right as owner, the harm inherent in and flowing from ongoing contraventions, and the lack of an adequate alternative remedy.


The court also held that a mandamus should issue against the municipality compelling enforcement action under the scheme, bylaws, and referenced legislation, including prosecution steps against the first respondent.


LEGAL PRINCIPLES


A duly adopted and approved town planning or land use scheme binds land owners and land users, and land may be used only for purposes permitted under the scheme (or under validly granted consent mechanisms contemplated by it). Continued use contrary to the scheme constitutes unlawful conduct that courts will not lightly condone.


Lease provisions prohibiting contraventions of laws, bylaws, and town planning controls may render unlawful land use a contractual breach, supporting cancellation where contractual requirements are met. Following lawful cancellation, continued occupation may constitute unlawful occupation justifying eviction.


In motion proceedings, alleged disputes of fact must be approached robustly and with common sense, and a court may decide issues on affidavit where disputes are not genuine or are not material to the outcome, consistent with the approach in Soffiantini v Mould 1951 (3) SA 307 (O).


For a final interdict, the applicant must establish a clear right, an injury actually committed or reasonably apprehended, and the absence of an adequate alternative remedy, in accordance with Setlogelo v Setlogelo 1914 AD 221.


Municipalities bear duties to enforce town planning schemes and related regulatory controls, and courts may grant coercive relief to prevent ongoing illegality and to uphold the principle of legality, particularly where contraventions also amount to statutory offences.

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[2020] ZALMPPHC 35
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Investec Property (Pty) Limited v China City Limpopo (Pty) Limited and Others (2168/2020) [2020] ZALMPPHC 35 (19 June 2020)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
CASE
NO: 2168/2020
In
the matter between:
INVESTEC
PROPERTY (PTY) LIMITED

APPLICANT
(REGISTRATION
NUMBER: 1947/025753/07)
And
CHINA
CITY LIMPOPO (PTY) LIMITED

FIRST RESPONDENT
(REGISTRATION
NUMBER: 2013/231965/07
DEVLAND
CASH AND CARRY (PTY) LIMITED

SECOND RESPONDENT
(REGISTRATION
NUMBER: 1997/003371/07)
POLOKWANE
MUNICIPALITY

THIRD RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]        The
Applicant brought an urgent application against the Respondents for
an order
in the following terms:
1.1.
A declaratory order confirming the cancellation of two lease

agreements entered into in respect of ERF 5678, Pietersburg Extension
12 Township, Polokwane ("the Subject Property").
1.2.
For First Respondent to be interdicted from conducting any
retail
activities on the subject property not permitted in terms of the
zoning of the property as "Industrial 1" in terms
of the
Polokwane / Perskebult Town Planning Scheme, 2016 in contravention of
the Polokwane Municipal Planning Bylaw, 2017 and other
legislation
inclusive of the
Spatial Planning and Land Use Management Act 26 of
2013
and Occupational Health and Safety Act 85 of 1992, its
regulations and any other relevant municipal bylaw.
1.3.
The eviction of the First and Second Respondents pursuant
to the
granting of the relief referred to in paragraph 1.1 above.
1.4.
Should the premises not so be vacated, that the Sheriff of
this Court
with the assistance of South African Police Service be authorised and
directed to evict First and Second Respondents
from the property.
1.5.
A mandamus to be granted against the Third Respondent, directing

Third Respondent to enforce the provisions of the Scheme, its Bylaws
relating to electricity, hygiene, health and safety, the provisions

of
Spatial Planning and Land Use Management Act and
the National
Building Regulations and Building Standards Act 103 of 1977 and
commence with prosecution against First Respondent
in terms of such
legislative provisions.
1.6.
Costs against any party opposing the application on the scale
as
between attorney and client.
[2]        The
application is opposed only by the First Respondent. The Second
Respondent
filed an affidavit in support of the application and the
Third Respondent has not participated in the proceedings even though
relief
is also sought against both the Second and Third Respondents.
[3]        The
following facts are common cause:
3.1.       It is
common cause between the parties that a lease agreement was concluded
between the
Applicant and the Second Respondent on the 24 April 2013.
This lease agreement may for the sake of convenience be referred to
as
the "main lease" to distinguish same from the sub­
lease entered into between the Second Respondent and the First

Respondent.
3.2.       In
terms of clause 13 of the main lease agreement, the Second Respondent
was entitled to
use the property for the purpose of conducting its
business, provided that such use does not contravene any town
planning conditions
applicable in respect of the property.
3.3.       In
terms of clause 14 of the main lease agreement the Second Respondent
was entitled to
sub-let a portion of the leased premises, but it was
specifically provided that any sub-letting will not affect in any way
whatsoever
the obligations of the Second Respondent in terms of the
lease agreement.
3.4.       Clause
16 of the main lease agreement emphasized that the Second Respondent
is prohibited
from contravening "any law, bylaw, ordinance,
proclamation or statutory regulation or the conditions of any license
relating
to or affecting the occupation of the property or the
carrying on of the lessee's operations in the property.
3.5.       The
sub-lease concluded by the Second Respondent and the First Respondent
on the 21 February
2014 was with the incorporation of the main lease
as an annexure thereto. In terms of clause 7.1 of the sub­ lease
the First
Respondent acknowledged that it is fully aware of the terms
and conditions of the main lease agreement.
3.6.       In
terms of clause 9 of the sub-lease, the leased premises was only to
be used for purpose
of a "Wholesale and Retail business, and for
no other purpose whatsoever". The Second Respondent did,
however, not warrant
that for the leased premises to be used as such.
3.7.       Clause
11 of the sub-lease specifically provides that the First Respondent
is obliged to,
at its own costs, obtain Municipal approval of the
business to be carried on and prohibited the use of the leased
premises for
any "illegal or improper purposes".
Factual
Background
[4]
On or about the 25 February 2014 the Applicant consented to the
conclusion
of a sub-lease between the First Respondent and Second
Respondent. By that time the First and Second Respondents had already
concluded
the sublease on 21 February 2014. Taking into account the
aforesaid consent granted, no need existed for the Applicant to
peruse
or consider the contents of the sub-lease concluded.
[5]
The subject property is zoned "Industrial 1" in terms of
the
Polokwane / Perskebult Town Planning Scheme, 2016 ("the
Scheme") and allows for the following primary land uses:
"
Warehouse, Builder's yard. Mortuary, Industry, Public Garage, Service
Industry, Panel Beating
and
Scrap
Yard ' .
As part of the secondary
land use rights for which either a special consent or written consent
is required from the Municipality
the subject property may also be
utilised for purposes of
"
Crematorium, Noxious Industry, Special Use, Telecommunication
Structures, Dwelling Unit (sub-ordinate to main use)
and
Cafeteria" .
[6]
In the present case it is common cause that no such special consent
or
written consent was granted by the Municipality and accordingly
the subject property may only be used for the aforesaid primary
land
use rights in terms of the Scheme. The First Respondent, however, is
utilising the subject property for purposes of retail
and is
conducting shops from the subject property. "Shops" is
defined in terms of the Scheme and is not one of the primary
use
rights allowed under an "Industrial 1" zoning.
[7]
The Applicant engaged the services of its town planner at the end of
January
2020 to investigate and compile a report regarding the
lawfulness of the First Respondent's activities on the subject
property.
In his report the town planner, Mr Jaco Daniel Du Plessis
concluded that the relevant Scheme is contravened. The summary of the

town planner's report is the following:
7.1.
The zoning of the subject property is
"
Industrial
1" and such zoning
does not permit the subject property to be utilised for purposes of
"Shop".
7.2.
A distinction should be drawn between "wholesale trade"
and
"shops". "Wholesale trade" specifically excludes
"retail trade and trading as a shop".
7.3.
No application was made to the Municipality to obtain "special

consent" in terms of clause 32 of the Scheme and therefore the
subject property may only be utilised for the primary land
use rights
allowed for in "Industrials 1" zoning.
7.4.
The existing shops in the China Mall, operated by the First
Respondent,
are accordingly unlawful because the Scheme is
contravened.
[8]       The
town planner, Mr Du Plessis arrived at the conclusion that the
relevant Scheme
is contravened after the current zoning of the
subject property was investigated by him and confirmed with reference
to a zoning
certificate issued by the Municipality and also having
investigated the provisions of the Scheme. The town planner's report
is
attached as Annexure "FA8" to the founding affidavit.
[9]       In
addition to the aforesaid, the Applicant procured an occupational
health and safety audit
report that was conducted by Messrs OHSAC
Safety Consultants. The findings in the occupational health and
safety audit report stated
that the First Respondent's shopping mall
scored 2% in terms of the
Occupational Health and Safety Act 85 of
1993
and the relevant regulations as mentioned in the report.
[10]     The
aforesaid health and safety audit report can be summarized as
follows:
10.1.
The China Mall failed with regard to the provision of fire
extinguishers and fire
control with reference to photographic
evidence.
10.2.
As far as the emergency exits are concerned, same do not comply with
the relevant
legislative provisions and regulations.
10.3.
Electrical safety in the China Mall is horrendous with reference to
photographic
evidence and creates a massive fire risk.
10.4.
The China Mall furthermore does not comply with waste management
requirements again with reference
to photographic evidence.
10.5.
As far as hygiene is concerned, it is demonstrated, with reference to
photographic
evidence, that a container is utilised as a toilet and
sewerage is overflowing.
10.6.
No safety file or health and safety documentation could be produced
by the China
Mall.
The
Occupational Health and Safety Audit Report is attached to the
founding affidavit as Annexure "FA9".
[11]       On the
7
th
February 2020 the Applicant's attorneys addressed a letter to the
First and Second Respondents. In terms of the letter, the Second

Respondent was, in terms of the lease agreement, placed in breach and
was afforded 10 days within which to remedy the breaches,
failing
which it was recorded that the Applicant may elect to cancel the
lease agreement. On the 11 February 2020 the Second Respondent,
in
turn, caused a breach letter to be sent to the First Respondent. On
18 February 2020 a letter was received from the First Respondent's

attorney. In this letter the breaches were denied and it was stated
that certain approvals were obtained from the Municipality.
[12]       The
Applicant purported to cancel the main lease agreement with the
Second Respondent on
the 26 February 2020 on the ground that the
breaches referred to in the Applicant's letter of 7 February 2020
were not remedied.
Similarly the Second Respondent also elected to
cancel the sub-lease on the 28 February 2020.
[13]       The
Applicant contends that because of the breaches of the main lease
agreement and the
sub-lease, both such agreements have been
cancelled, yet the First Respondent remains in unlawful occupation of
the subject property
and continues with its unlawful activities
thereon. The Second Respondent is not challenging the Applicant's
cancellation of the
lease agreement and has already vacated the
premises, that is, the subject property.
Issues
[14]       The
following issues are to be determined in this matter:
14.1.
Whether the First Respondent is in breach of the sub-lease agreement.
14.2.
Whether the main lease agreement and the sub-lease were lawfully
cancelled by the Applicant.
14.3.
Whether the Applicant is entitled to evict the First Respondent from
the subject property.
14.4.
Whether the Applicant has made out a case for a mandamus order
against the Third Respondent
(Municipality).
The
Law
[15]     The
Applicant alleges that the First Respondent is acting unlawfully on
the subject property in contravention
of numerous legislative
provisions and bylaws which are to the severe detriment of the
Applicant as registered owner. These contraventions
of the
legislative enactments and bylaws are:
15.1.
Contravention of the
15.1.1.
Municipal Planning Bylaw, 2017
("the Bylaw").
15.1.2.
Polokwane / Perskebult Town Planning
Scheme, 2016 ("the
Scheme").
15.1.3.
Spatial Planning and Land Use Management
Act 26 of 2013 ("SPLUMA")
and
15.1.4.
National Building Regulations and Building
Standards Act, 103 of 1977
("the Building Standards Act").
15.2.
The contravention of the Occupational Health and Safety
Act, 85 of
1992 ("the Health and Safety Act").
[16]       The
Polokwane / Perskebult Town Planning Scheme, 2016 is an approved
Scheme as contemplated
in section 57 of the Town Planning and
Township Ordinance, 1986 (Ordinance 15 of 1986) and is applicable to
all land and buildings
within the area of the Scheme, denoted on the
Map as confirmed in Part I of the Scheme. The purpose of this town
planning Scheme
shall be to co-ordinate the harmonious development of
the area to which it relates in such a way as almost effectively
intended
to promote the health, safety, good order, amenity,
convenience and general welfare of such area, as well as efficiency
and economy
in the process of such a development.
[17]       In
terms of section 19(3) of the Scheme no person shall use or cause or
allow to be used,
any land or building or part thereof for a purpose
other than for which is provided for in the Scheme.
[18]
Section 26 of SPLUMA provides that:
"(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).........
...........
....
(c)
..
... .............. ...
(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)" .
[19]       SPLUMA
provides in section 32 thereof that:
"(1)
A municipality may pass by-laws aimed at enforcing its land use
scheme.
(2)
A municipality may apply to
a
court for an
order-
(a)
interdicting any person from using
land in contravention of its land use scheme;
(b)
authorising the demolition of any
structure erected on land in contravention of its land use scheme,
without any obligation on the
municipality or the person carrying out
the demolition to pay compensation; or
(c)
directing any other appropriate
preventative or remedial measure".
[20]
In addition to the aforesaid section in SPLUMA, section 58 thereof
provides that
"(1) A person is guilty of
an offence if that person­
(a)
contravenes section 38(3);
(b)
uses land contrary to
a
permitted land use as contemplated in
section 26(2);
(c)
alters the form and function of land
without prior approval in terms of this Act for such alteration;
(d)
..........
......... .. ... ...
(2)
A person convicted of an offence in terms of subsection (1) may be
sentenced to
a
term of
imprisonment for
a
period not
exceeding 20 years or to
a
fine calculated
according to the ratio determined for such imprisonment in terms of
the Adjustment of Fines Act, 1991 (Act No. 101
of 1991), or to both
a
fine and such
imprisonment".
[21]
Section 4 of the Building Standards Act provides that:
"(1) No person shall
without the prior approval in writing of the local authority in
question, erect any building in respect
of which plans and
specifications
-
are to be drawn
and submitted in terms of this Act
.
(2)...
........... ..
(3)
.........
... ..
..
(4)
Any person erecting any building in contravention of the provisions
of subsection (1) shall be guilty of an offence and liable
on
conviction to
a
fine not
exceeding R 100 for each day on which he was engaged in so erecting
such building".
[22]
Section 14(1) of the Building Standards Act provides that the local
authority shall issue
a certificate of occupancy in respect of the
building to the owner of a building or any person having an interest
therein if it
is of the opinion that such building has been erected
in accordance with the provisions of the Act. Subsection (4) of the
Act provides
that the owner of the building or any person having an
interest therein shall be guilty of an offence if he occupies or uses
such
building without being issued with the certificate of occupancy.
[23]       The
essence of the grounds upon which the Applicant relies in alleging a
breach of the
sub-lease agreement and incidental thereto the lease
agreement between Applicant and Second Respondent are:
23.1.      Contravention
of the Town Planning Scheme by the First Respondent; and
23.2.      Contravention
of the
Occupational Health and Safety Act 85 of 1993
, inclusive of
general safety regulations, major hazard installations pertaining to
fire, emergency exits, electrical safety, hygiene
safety and first
aid.
[24]       The
First Respondent contends that the Applicant has failed to make out
any case that even
if it is correct that the alleged "Industrial
I" zoning of the property does not allow for the use of the
property in
the manner utilised by First Respondent, that the use of
the property affects "the co-ordinated and harmonious
development
of the area". The test in this regard was
established in the case of
Pick 'n
Pay Stores Limited and Others v Teasers Comedy and Review CC and
Others
2000 (3) SA 645
(W)
at 653F
where it was held:
"The
test whether
a
use is
"incidental to" another is whether it is legitimately part
of that other use when viewed objectively. To determine
whether the
use to which the land is being put contravenes the legislative
provisions, the question is whether, viewed objectively,
such alleged
infringing use is legitimately part of or incidental to the use
permitted by the town planning Scheme. Any use of
property which in
no way affects the co-ordinated and harmonious development of the
area is not
a
contravention"
.
[25]       The
general purpose of a town planning scheme is in my view the
co-ordination and harmonious
development of the area to which it
relates in such a way as will most effectively tend to promote the
health, safety, good order,
amenity, convenience and general welfare
of such area as well as efficiency and economy in the process of such
development. It
is against this backdrop that Southwood J in
City
of Tshwane Metropolitan Municipality v Grobler
2005 (6) SA 61
(TPD)
said at page 65:
"It is therefore the duty
of the relevant local authority to enforce the provisions of its
town-planning scheme........ And
owners and occupiers of property
governed by the scheme are obliged to use the property and any
building thereon in conformity
with the provisions of the scheme and
comply with any lawful directives given to them by the local
authority in relation to such
use".
See
also:
United Technical Equipment Co (Pty) Ltd v Johannesburg City
Council
1987 (4) SA 343
(T) at 348H-1; and Johannesburg City Council
v Bernard Lewis Construction
1991 (2) SA 239
(W) at 242E-G.
[26]       In
paragraph 12 of the
Grobler
judgment
it is furthermore stated that
"[12]
This deliberate flouting of the law in the face of lawful attempts by
the applicant to perform its
statutory duty warrants
a
special costs
order. To permit such conduct would result in anarchy particularly in
a
city
where it is notorious that contraventions of the Scheme in
circumstances such
as
the present are
widespread'.
[27]       In the
matter of
United Technical Equipment
(supra) at 348 I - J the Full Court
per Harms J (as he then was) stated that:
"The
respondent has not only
a
statutory duty
but also
a
moral
duty to uphold the law and to see to due compliance with its town
planning scheme. It would in general be wrong to whittle
away the
obligation of the respondent as
a
public authority
to uphold the law;
a
lenient approach
could be an open invitation to members of the public to follow the
course adopted by the appellant, namely to use
land illegally with
a
hope that the use
will be legalised in due course and that pending finalisation the
illegal use will be protected indirectly by
the suspension of an
interdict' .
[28]       In the
case of
Lester v Ndlambe Municipality
2015 (6) SA 283
(SCA)
the Supreme
Court of Appeal had to deal with a situation where the Appellant had
contravened the provisions of section 4(1) of the
National Building
Regulations and Building Standards Act 103 of 1977. The Appellant had
erected a building without submitting plans
and specifications to the
Municipality for approval.
Majiedt JA at paragraph 23 stated
the following:
'[23]
The answer is simply that the law cannot and does not countenance
an ongoing illegality which is also
a
criminal offence. To do
so, would be to subvert the doctrine of legality and to undermine the
rule of law. In
United Technical Equipment
Co
(Pty) Ltd v Johannesburg City Council
the Full
Court was seized with an appeal against the granting of an interdict
in the Local Division in terms whereof the appellant
company (qua
respondent
a
quo) was restrained from using property which was
zoned residential in terms of the Town Planning Scheme, for business
purposes
(offices). It was common cause that by using the property as
offices, the appellant was committing an offence".
[29]       It is
clear from the cases referred to above that Courts have a duty to
ensure that the
doctrine of legality is upheld and to grant recourse
at the instance of public bodies charged with the duty of upholding
the law.
With reference to the present case it is therefore
imperative that the First Respondent should obey the law in respect
of the zoning
of property and erection of buildings. The Court will
not countenance the First Respondent’s ongoing statutory
contraventions
and is enjoined to enforce the provisions of the
Municipal bylaws and the town planning scheme.
Breach
and Cancellation of the main lease and sub-lease Agreements
[30]       It is
common cause that the subject property is zoned "Industrial"
in terms of
the zoning certificate which forms part of the Court
papers in this matter. The primary rights allowed for the subject
property
are warehouse, builder's yard, mortuary, public garage,
service industry, panel beating, and scrap yard. It is furthermore
common
cause that the First Respondent conducts none of the
abovementioned businesses on the subject property. Instead the First
Respondent
conducts a business of retail trade or shops. This is
clearly in contravention of the Scheme and SPLUMA.
[31]       Clause
9 of the sub-lease agreement
between the First
and Second Respondents specifically provided that
the premises were to be used by First Respondent for the purpose of
"a wholesale
and retail business". This provision in the
sub-lease is clearly in contravention of the Scheme and SPLUM. It is
common cause
that the Municipality did not grant any "special
consent" or "written consent" in terms of the Scheme
for the
First Respondent to use the subject property otherwise than
as "Industrial". I may point out that the Scheme refers to

"shops" or "retail" which is not a primary or
secondary land use falling within the zoning of "Industrial
I".
The First Respondent, in its answering affidavit readily conceded
that the subject property is utilised for purposes of
retail.
[32]       The
lease agreement as well as the sub-lease specifically prohibits any
contravention of
the town planning scheme read with the provisions of
the Bylaw and SPLUMA. Any approval that might have been granted by
the Municipality
in terms of the Building Standards Act is subject to
the zoning of "Industrial".
[33]       Mr Van
der Merwe SC, counsel for the Applicant submitted that once this
Court makes a finding
that the Scheme is contravened by the
utilisation of the structures erected on the subject property, it
follows that no lawful
approval could have been granted by the
Municipality, allowing for the subject property to be used for retail
purposes. This, Counsel
submitted, would fall foul of the provisions
of section 7(1)(a) of the Building Standards Act.
I agree.
[34]       Mr Uys
SC, Counsel for the First Respondent conceded, correctly in my view,
that once I
make a finding that the Scheme is contravened by the
conducting of a business of retail trade or shops by the First
Respondent,
then a breach of the sub-lease agreement is established.
I accordingly make a finding that the First Respondent is in breach
of
the sub­ lease agreement. This also renders the Second
Respondent to be in breach of the main lease agreement.
[35]
Regarding the contravention of health and safety regulations by the
First Respondent, the
Applicant relies upon the occupational health
and safety report that was compiled by Messrs OHSAC Safety
Consultants and attached
as Annexure "FA9". The First
Respondent's shopping mall scored a dismal 2% in the audit report.
The report concludes
that massive health and safety, fire and hygiene
risks are created by the First Respondent requiring immediate
intervention. The
Municipality also conducted its own investigation
and compiled a report, a copy of which is annexed to the Second
Respondent's
affidavit marked Annexure "04" wherein the
Municipality comprehensively lists the shortcomings of the First
Respondent
as far as the relevant health and safety and fire
prevention regulations are concerned. By virtue of contravening these
regulations
concerning health and safety, the First Respondent is in
breach of the sub-lease agreement.
Disputes
of Fact
[36]
Counsel for the First Respondent argued that there are irresolvable
material disputes of
fact on the papers. He listed the following as
material disputes of fact:
36.1.    First Responden'ts
alleged breach of the sub-lease agreement.
36.2.    The alleged failure by
the First Respondent to have remedied any possible breach that may
have existed.
36.3.    The alleged
contravention of the town planning Scheme by First Respondent.
36.4.    The veracity and
validity of the audit report relied upon by Applicant and
non-compliance with specified
legislative instruments inclusive of
the Building Standards Act.
[37]       It is
trite that in motion proceedings where different versions are
contained the Court
should follow a common sense and robust approach.
In the case of
Soffiantini v Mould
1951 (3) SA 307
(0)
at 308 Prince JP
said the following:
"If by
a
mere denial in
general terms
a
respondent can
defeat or delay an applicant who comes to Court on motion, then
motion proceedings are worthless, for
a
respondent can
always defeat or delay
a
petitioner by
such
a
device.
It is necessary to make
a
robust,
common-sense approach to
a
dispute on motion
as
otherwise
the effective functioning of the Court can be hamstrung and
circumvented by the most simple and blatant stratagem. The
Court must
not hesitate to decide an issue of fact on affidavit merely because
it may be difficult to do
so.
Justice can be
defeated or seriously impeded and delayed by an over-fastidious
approach to
a
dispute raised in
affidavits" .
[38]       I am
of the view that there are no material disputes of fact in this
matter. It is indisputable
that the First Respondent conducts a
business of retail trade or wholesale and retail on the subject
property zoned "Industrial
I" in contravention of the
Scheme and SPLUMA. This aspect alone renders the First Respondent to
be in breach of the sub-lease
agreement. This much has been conceded
by the First Respondent in its answering affidavit. On this aspect
alone, the Applicant
validly cancelled the lease agreement and the
sublease. Because of the valid cancellation of the lease agreement
and the sub-lease,
the First Respondent is currently in unlawful
occupation of the subject property. The aforesaid unlawful occupation
warrants the
First Respondent's eviction.
[39]       There
is no merit in First Respondent Counsel's submission that there
exists any material
disputes of fact that render the issues in this
matter irresolvable on the papers. I therefore make a ruling that
this matter be
decided on the papers as they stand.
Interdictory
Relief
[40]       For
more than a century our law has authoritatively required an applicant
seeking a final
interdict to:
(1)
demonstrate a "clear right".
(2)
show an injury in the form of irreparable harm actually committed or
reasonably
apprehended and
(3)
the absence of an alternative remedy.
See
Setlogelo v Setlogelo
1914
AD 221
at 227.
[41]       The
Applicant in the present case is the registered owner of the subject
property and is
entitled to enforce the provisions of the Scheme, the
Bylaw, SPLUMA as well as the Building Standards Act against the First
Respondent
and compel the Municipality to enforce such legislative
provisions. In addition to the aforesaid, the Applicant was entitled
to
enforce the provisions of the lease agreement and in terms of the
Health and Safety Act prevent the First Respondent from contravening

same. Consequently, the Applicant has a clear right to the
interdictory relief sought against the First Respondent and the
Municipality.
[42]       A
contravention of the Scheme, the Bylaw and the provisions of SPLUMA,
in itself, constitutes
harm because the Scheme operates to the
benefit of the owners of property falling within its jurisdictional
area and if same is
contravened property owners within its
jurisdiction are detrimentally affected. The unlawful activities of
the First Respondent
moreover create massive risks to the Applicant
which would translate to irreparable harm if the interdictory relief
is not granted.
[43]       I am
of the view that the Applicant has no alternative remedy but to
approach this Court
for the interdictory relief to be granted against
the First Respondent and the Municipality. Despite the cancellation
of the lease
agreements and despite the Applicant's demand, in
writing, to vacate the subject property, the First Respondent refuses
or neglects
to do so and will continue with its unlawful activities
on the subject property unless interdictory relief is granted.
[44]       In the
premises, the following order is granted as prayed in the Notice of
Motion:
1.
It is declared that the lease agreement concluded between the

Applicant and the Second Respondent on the 24
th
April 2013 in respect of Erf 5678, Pietersburg Extension 12 Township,
Polokwane ("the subject property") is cancelled.
2.
It is declared that the sub-lease agreement concluded between
the
First and Second Respondents in respect of a portion of the subject
property dated the 21
st
February 2014 is cancelled.
3.
That the First Respondent be and is hereby interdicted from

conducting any retail activities on the subject property, not
permitted in terms of the zoning of "Industrial I" in
Polokwane / Perskebult Town Planning Scheme, 2016, ("the
Scheme"), in contravention of the Polokwane Municipal Planning

Bylaw, 2017 ("the Bylaw"), the Spatial Planning and Land
Use Management Act 16 of 2013 ("SPLUMA"), the
Occupational
Health and Safety Act 85 of 1993
, its Regulations and any other
relevant municipal bylaw.
4.
The First Respondent and all those persons or entities holding

occupation of the subject property through it, be and are hereby
evicted from the subject property and are ordered to vacate same

within a period of 30 (thirty) days from date of this order.
5.
That should the First Respondent and all those persons or entities

holding occupation of the subject property through it, fail and/ or
refuse to vacate the subject property within 30 (thirty) days
from
date of this order, that the Sheriff of the High Court, with the
assistance, if necessary, of the South African Police Service,
is
authorised and directed to evict the First Respondent from the
subject property.
6.
That a mandamus is hereby issued against the Third Respondent,

directing the Third Respondent to enforce the provisions of the
Scheme, the Bylaw, its bylaws relating to electricity, hygiene,

health and safety, the provisions of SPLUMA and the National Building
Standards Act, 103 of 1977, against the First Respondent
and commence
with prosecution steps against the First Respondent in terms of such
legislative provisions.
7.
That the First Respondent pays the costs of this application
which
costs shall include the costs of two Counsel.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on

: 12 June 2020
Judgment
delivered on        :19 June 2020
For
Applicant

: Adv M P Van der Merwe SC
Adv J A Venter
Instructed
by

: Edelstein Farber Grobler Inc
c/o Kirk Twine Attorneys
For
First Respondent
: Adv JC Uys SC
Instructed
by
: Yammin Hammond Inc
c/o Kampherbeek & Pogrund
Attorneys

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