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[2019] ZAFSHC 232
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McKay and Others v Ursiweb (Proprietary) Ltd and Others (3510/2019) [2019] ZAFSHC 232 (5 December 2019)
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: 3510/2019
In
the matter between:
GILLIAN
McKAY
1
st
Applicant
JULIANA
SOPHIA
KOCK
2
nd
Applicant
MICHELLE
VAN
ZYL
3
rd
Applicant
and
URSIWEB
(PROPRIETARY) LTD
1
st
Respondent
PERFECT
SLABS (PTY) LTD
2
nd
Respondent
MANGAUNG
METROPOLITAN
MUNICIPALITY
3
rd
Respondent
HEARD
ON:
21 NOVEMBER 2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
5 DECEMBER 2019
Final
interdict – Illegal use of land in contravention of the
restrictive conditions and township scheme – Locus standi
not
limited to property owners but also those who also possess sufficient
protectable interest – Restrictive conditions and
township
schemes conceived in the interest of the community to which it
applies – Effective remedy of infringement on a public
right is
an interdict – Suspension of the operation of the order an
extraordinary remedy.
[1]
In simple terms, this is an application brought by the applicants
(all residents of Dan Pienaar suburb, Bloemfontein) against
the
respondents (both corporate entities) interdicting or restraining
them or any other person from the illegal use of the property
known
as erf […] Bloemfontein Extension 133 (alias […] L
Street). The first and second applicant are property owners
while the
third applicant is a resident in the neighbourhood of the property in
contention. The first respondent is the registered
owner of the
property which is the subject matter and the second respondent is a
construction company conducting its administrative
component of the
business from the property. Although the third respondent is cited in
these proceedings, no order is sought against
the third respondent.
[2]
It is common cause that Deed of Transfer Number T 5918/2016 was
registered in favour of the first respondent on 16 May 2016
subject
to the servitudes as set out in Deed of Transfer Number T 3992/1951.
One such restrictive condition on paragraph (a) is
that “
this
erf shall be used for residential purposes only and no trade or
business or industry whatsoever shall be conducted thereon”
.
It is precisely because of this restrictive condition that the first
respondent lodged an application with the third respondent
on 6
August 2018 to remove them and rezone the property. It stands to
reason that the use or continuation to use the property for
any
business or trade other than for residential purposes constitutes an
illegal act. This aspect was correctly conceded
by the counsel
for the first and second respondent that the property is not used as
it is supposed to be.
[3]
It was contended on behalf of the applicants that the restrictive
conditions and town planning scheme are binding on the respondents
because there has not been any amendment or suspension. The
applicants have the
locus standi
to bring the application because they possess sufficient protectable
interest in the effective and enforcement of the scheme which
was
enacted in the interest of the owners (residents) in close proximity
of the property. The gist of the submission is that they
acquired
their properties with a keen expectation of the residing in a
residential suburb with amenities that are consistent with
a
residential suburb and with a residential character.
[4]
Despite the concession that the first and second respondents are
committing an illegal act, the multi-pronged argument on behalf
of
the respondents culminates with the submission that in the event the
application is granted, that the court use its inherent
discretion to
suspend the order for a period of time. Although in the papers the
contention was that the second respondent was
not the owner of any
property in the neighbourhood, this point was jettisoned in the oral
argument. The all-encompassing argument
is that the applicants do not
possess the
locus standi
to bring the application. It was
pointed out that none of the applicants lived within fifty metres of
the property. They are residing
approximately a kilometre away and as
such there can be no talk that they lived in close proximity of the
property.
[5]
The argument continued that the property was used to accommodate only
four (4) staff members of the second respondent who reported
for duty
at 8H00am and knocked off at 16H30pm on weekdays. They dealt mainly
with quotations and orders. No cash exchanged hands
between them and
client. It was only in exceptional cases that the clients to
the property. In a nutshell there was no nuisance
generated by the
activities of the respondents against the neighbours. The other point
is that the suburb of Dan Pienaar has over
the years changed in
character with various businesses and even one of the biggest
shopping malls in the city established in the
area. The last point is
that the first applicant has applied for rezoning over a year ago and
no objection has to date been lodged
against the application. The
reality is that it is supported by neighbours as evidenced by an
affidavit of one D.J. van Straaten.
Although it has not been
granted/declined, the third respondent is already collecting rates
and taxes payable by business and commercial
properties.
[6]
It is trite that the requirements for the grant of a final interdict
are more stringent than those for the grant of a temporary
interdict.
This is so because of the far reaching consequences of the order of
that kind. The requirements for a final interdict
are accepted in our
courts as a clear right, injury committed or reasonably apprehended
and that there is no other suitable or
alternative remedy.
[1]
These must be demonstrated by an applicant(s) seeking a relief which
is final in nature.
[7]
This brings me to the determination of the
locus
standi
that the applicants may possess and whether they have established any
clear right as required in our law. It is unquestionable
that an
owner of land is not permitted to perform activities which
contravenes the restrictive title conditions or the zoning
restrictions. This being expressly prohibited by law pertinently in
the public interest. It conclude that the applicants do
possess
the necessary
locus
standi
.
[2]
The test applied throughout the courts in the Republic expressed in
BEF
(Pty) Ltd v Cape Town Municipality and Others
emphasizes
that in order to apply the test laid in
Patz
v Greene
,
must be examined whether the scheme was introduced for the benefit of
the general public or persons falling within a particular
class or
both.
[3]
In this case, the conclusion is that the scheme was for the
inhabitants of the suburb of Dan Pienaar.
[8]
The clearest indication that a land owner does have
locus
standi
and a clear right to approach the
court in the matter of this nature was stated in
Walele
v City of Cape Town and Others
. O’Regan
J stated 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 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.
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 on owners
to expect compliance by neighbours with the
terms of the mutually
applicable scheme. The result is that where an owner seeks 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.”
[4]
[9]
The courts have repeatedly pronounced that the essence of town
planning schemes is conceived in the interest of the community
to
which it applies.
[5]
This means that it does not matter whether an individual in this
special class does own a property there or not. This is
specifically
dealt with because the respondents argued that the third applicant
does not have
locus
standi
on the basis that she does not own a property in the suburb. As it
appears in the papers, she is a resident in the neighbourhood
staying
with her parents. There can be no talk that she does not have a
protectable interest. She does have the necessary
locus standi.
[10]
The last leg of the argument that the applicants do not reside within
close proximity of the property does not find favour
with me. They
stay about one (1) kilometre away. I was not directed to one (1)
authority with a detailed explanation of what is
meant by close
proximity. The decisions of the courts refer to all owners in
an area affected by an applicable zoning scheme.
There is no
merit in this argument.
[11]
I shall not deal with the requirement that an injury has actually
been committed or reasonably apprehended. It has already
been
conceded that the applicants are not complying with the restrictive
conditions and town planning scheme.
[12]
Writing for the undivided bench in
Chapman’s
Peak Hotel v O’Hagans
, Griesel J said
the following:-
“
Once
it is accepted that the nature of the right in question is a public
right, then it must follow, in my view, that for continuing
infringements of that right the only effective remedy is an
interdict, all the more so where such infringements amount to an
offence.”
[6]
I
agree.
[13]
Counsel for the respondents implored me to exercise my discretion to
grant the order and suspend its operation. That is an
extraordinary
remedy which requires a compelling case to be made out before it is
granted. I am of the view that in this matter,
it is appropriate to
adopt the stricter approach. It does not come to the aid of the
respondents that they are not the only ones
in contravention of the
law. They must be brought into line immediately when such matters are
brought to the attention of the court.
[14]
There are no convincing reasons advanced that such an order should be
granted. The applicants have been continuing to act in
an unlawful
manner at least for fifteen (15) months. It appears that they are
hell-bent to do so without the necessary relaxation
of the
restrictive conditions. To act otherwise will be to support or
approval to an ongoing illegality which is also a criminal
offense.
This will be tantamount to the subversion of the doctrine of legality
and undermining of the rule of law.
[7]
[15]
I now turn to the issue of costs. In his opening address counsel for
the applicants remarked that the facts were straightforward.
I agree
with him. There is nothing intricate in this matter to justify
employment of two (2) counsel. While in the exercise of
my discretion
I am of the view that the respondents are liable to pay the costs
given the outcome of the matter, such should not
include the costs of
two (2) but one (1) counsel.
[16]
The order of the Court is as follows: -
16.1 The first and second
respondents are interdicted and restrained from conducting or
allowing any other person to conduct a business
from the premises
situated at […] L Street, Dan Pienaar, Bloemfontein described
as Erf […], Dan Pienaar, Extension
133, Bloemfontein.
16.2 The first and
second respondents are ordered, jointly and severally to pay the
costs of this application.
__________________
M.
A. MATHEBULA, J
On
behalf of applicant: Adv. N. Snellenburg SC
Assisted
by: Adv. C.D. Pienaar
Instructed
by: Blair Attorneys
BLOEMFONTEIN
On
behalf of 1
st
& 2
nd
respondent: Adv. S.J.
Reinders
Instructed
by: Van Wyk & Preller Inc.
BLOEMFONTEIN
[1]
Setlogelo v Setlogelo
1914
AD 221
; Pilane v Pilane and another
2013 (4) BCLR 431
(CC) at para
39
[2]
Patz v Greene
1907 TS 427
at 433
[3]
1983 (2) 387 (C) at 400 H
[4]
[2008] ZACC 11
;
2008 (6) SA 129
CC at para
130
[5]
Pick and Pay Stores Ltd v
Teezers Comedy and Revue CC
2000 (3) SA 645
(WLD) at 653 H
[6]
2001 (4) All SA 415
(C) at
para 18
[7]
Hotz v City of Cape
2016
(4) All SA 723
(SCA) at para 23