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[2018] ZAGPJHC 701
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Ekurhuleni Metropolitan Municipality v Christensen and Another (44684/16) [2018] ZAGPJHC 701 (16 November 2018)
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Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 44684/16
In
the matter between:
EKURHULENI
METROPOLITAN
MUNICIPALITY APPLICANT
and
M
CHRISTENSEN 1ST
RESPONDENT
CH
FULLER 2ND
RESPONDENT
JUDGMENT
VAN
DER SCHYFF, AJ
Introduction
and background
[1]
This is an application for declaring the use of the property
described as Erf […], Boksburg to be in contravention with
the
Ekurhuleni Town Planning Scheme, 2014 and unlawful, and for ancillary
relief.
[2]
The relief sought by the applicant in the notice of motion, is
set out as follow:
1.1
Declaring
that the respondent, and all other persons who hold possession of
Erf. [...], situated at number […], E Street,
Boksburg,
Gauteng (“
the
Property”
),
through or under the respondents be declared to be in contravening or
engaging in activities in respect of the property that
contravene and
/or have the effect of contravening the erstwhile Boksburg Town
Planning Scheme of 1991, which has since been replaced
by a new town
planning scheme, the latter of which replaced all other town planning
schemes which applied in respect of each local
town council all of
which, were disestablished and replaced by the current municipality,
the applicant in the present proceedings.
This new town planning
scheme is known as Ekurhuleni Town Planning Scheme, 2014 (“
the
Scheme”
),
read together with the Town Planning and Town[ship]
[1]
Ordinance No, 15 of 1986 (“
the
Ordinance
”),
for using the property as a boarding house, (“
hereinafter
referred to as the business”
),
instead of using the property for the purpose specifically defined
and only consistent with the zoning certificate in terms of
which the
property is zoned
residential
.
1.2 Declaring that
the respondent’s conduct referred to above is without the
applicant’s prior consent in writing
thereto and that such
consent is required, therefore, that the respondent’s conduct
is unlawful for lack of such consent
from the applicant.
1.3 That the
respondent be interdicted from using the property as aforementioned.
1.4 That the
respondents be ordered to restore the property to its original status
which is compliant and consistent with
the Zoning certificate as duly
issued in terms of the scheme.
1.5 That the relief
sought in terms of prayers 1.1 to 1.4 above be given effect to within
ninety (90) days from the date of
the order, failing which, the
Sheriff of the above honourable court or his deputy, be authorised to
carry out any such order, and
to do whatever is legal and reasonably
necessary and take all reasonable and lawful steps to carry out and
give effect to the court
order.
1.6 Ordering the
respondents to pay the costs of the application on the scale as
between attorney and client.
[3]
The application is opposed on a pure technical basis. The respondents
contend that a perfunctory reading of the founding papers
reveal that
the relief sought is not supported by the necessary factual
averments. Although several points of contention were raised
in their
written heads of argument, counsel for the respondents confined his
argument to one main aspect, namely that the applicant
did not set
out its case properly on paper. Counsel on behalf of the respondents
argued that the applicant attempts to introduce
evidence that ought
to have been contained in the affidavit through its heads of
argument. The respondent’s main contentions
in this regard are
that the application is fatally defective in that:
i. The applicant does not
appraise the respondents or the court as to which sections of the
scheme and/or ordinance were allegedly
contravened; and
ii. The applicant failed
to establish to what extent the undefined sections have been
breached.
[4]
It must be stated at the outset of the arguments discussion that both
counsel were well prepared and referred the court to a
host of
applicable case law. The court is indebted to them.
[5]
In order to decide on the outcome of this application the court needs
to determine whether the applicant made out a proper case
in its
founding affidavit for the relief sought. In the event of the court
finding that the applicant made out a proper case in
its founding
papers the application must be considered in light of the well-known
Plascon Evans
- principle. Conversely, if the court cannot
find that a proper case was made out in the founding papers the
application must be
dismissed.
Legal
requirements: Founding affidavit
[6]
It is trite
that an applicant must make out its case in the founding
affidavit.
[2]
It is thus
necessary to state (i) who the applicant is, and that the applicant
has the necessary authority to bring the application;
(ii) the
applicant’s interest in the matter and that he has the capacity
to bring the proceedings; (iii) that the court has
jurisdiction; and
(iv) the grounds on which relief is claimed, or the cause of action.
The
description of the applicant
[7]
The applicant is described as the
‘
Ekurhuleni
Metropolitan Municipality, a municipality duly established in terms
of the Government Gazette, No. 6768 of 2000, published
in the
Provincial Government Gazette Extraordinary Notice, No. 5215 of 2001,
duly published on and dated 29 August 2001, with its
head offices at
the corner of Cross and Roses Streets, Germiston Gauteng’.
[8] In their answering affidavit the respondents boldly deny any knowledge as to whether the applicant was duly established. It is
evident from the description of the applicant in the founding affidavit that the applicant is the Ekurhuleni Metropolitan Municipality.
I am of the view that the respondents would have known exactly who was instituting these motion proceedings against them. To dispute
the identity of the applicant without providing any basis therefor is a red herring and a waste of time.
The
applicant’s
locus standi
[9]
The applicant’s
locus standi
is entrenched in the
statutory provisions in terms of which it was established. To deny
the applicant’s
locus standi
without setting out a
reason underpinning the denial does not take the respondents
opposition of the application any further.
Jurisdiction
[10]
The jurisdiction of this court to hear the matter is dealt with in
paragraph 11 of the founding affidavit. It is common cause
that the
property that forms the subject matter of this application is
situated within the jurisdiction of this court.
The
grounds upon which relief is claimed
[11]
In
application proceedings the affidavits filed by the respective
parties constitute not only the pleadings, but also the evidence.
As
a result, the affidavits must set out all the evidence that would
have been led in a trial.
[3]
It
was stated clearly by Miller J in
Hart
v Pinetown Drive-in Cinema (Pty) Ltd
:
[4]
‘
Where
proceedings are brought by way of application, the petition is not
the equivalent of the declaration in proceedings by way
of action.
What might be sufficient in a declaration to foil an exception, would
not necessarily, in a petition, be sufficient
to resist an objection
that a case has not been adequately made out. The petition takes the
place not only of the declaration but
also of the essential evidence
which would be led at a trial and if there are absent from the
petition such facts as would be necessary
for determination of the
issue in the petitioner’s favour, an objection that that it
does not support the relief claim is
sound’.
[12]
To
determine whether an application meets the test set out by Miller J,
the founding affidavit is to be considered on its own and
the
allegations therein presumed to be correct. If the allegations
contained therein are sufficient to warrant a finding in favour
of
the applicant, a cause of action is properly constituted therein.
[5]
It lies in the discretion of the court while considering the facts of
the specific case before it, to decide whether the applicant’s
founding affidavit contains sufficient allegations to establish a
proper case. In exercising its discretion as to whether the founding
affidavit establishes a cause of action, a court must consider the
nature of the relief sought by the applicant.
The
applicant’s founding affidavit
[13]
The applicant explains in its founding affidavit that it is a
metropolitan municipality with the authority to regulate land
use. In
order to execute the regulatory functions, the Ekurhuleni Town
Planning Scheme, 2014, hereafter “the 2014-scheme”,
has
been established. Although a copy of the 2014-scheme was not attached
to the founding affidavit it is stated in paragraph 16
of the
founding affidavit that a copy of the scheme is available on request.
[14]
It is then stated that the property concerned is zoned as
“residential 1” and a copy of the zoning certificate
is
attached to the founding affidavit. The zoning certificate attached
to the founding affidavit is dated 2 August 2013 and it
is stated
that the property is zoned as “Residential 1” in terms of
the Boksburg Town Planning Scheme, 1991. Reference
to the property
being zoned in terms of the Boksburg Town Planning Scheme of 1991
would have created confusion if it was not for
the content of
paragraph 12.1 of the founding affidavit where the applicant clearly
and unequivocally states that the Boksburg
Town Planning Scheme of
1991 has since been replaced by “a new town planning scheme…
This new town planning scheme
is known as the Ekurhuleni Town
Planning Scheme, 2014.”
[15]
The applicant states that the respondents are carrying out business
activities on the property which business activities constitute
a
boarding house. Such activities are not permitted in terms of the
zoning certificate. No consent has been sought by the respondents
or
obtained from the applicants to conduct a boarding house on the
property.
[16]
The respondents aver that the applicant does not make out a case that
the property is being used as a boarding house because
the applicant
relies firstly on a report by one SA Malatji wherein it is stated
that the respondent was contravening the National
Building
Regulations and Buildings Standards Act and that continued to
contravene the same despite a notice being issued on 10
May 2013 in
which the transgression was explained and the owner of the property
stand requested to rectify the matter. Certain
photographs that were
taken by Malatji indicating the nature of the structures erected were
attached to the founding affidavit.
[A confirmatory affidavit by
Malatji was not attached to the founding affidavit but one was filed
on 4 October 2018].
[17]
The respondent’s counsel argued that there is no link between
the contravention of building regulations referred to by
Malatji and
the current application that the respondent is acting in
contravention of the zoning certificate. However, the respondent
lost
sight of the fact that annexure EMM 7 is a copy of an affidavit
attested to by the City Planner on 1 August 2013 that an inspection
revealed that a boarding house was being operated from the property.
In a follow-up report dated 2 December 2015 it is once again
confirmed that a Boarding House was conducted on the property that is
in contravention of the 2014-scheme. [No confirmatory affidavit
by
the author of this report was attached to the founding affidavit,
however a confirmatory affidavit was filed on 4 October 2018].
[18]
When the founding affidavit is analysed it is evident that the
applicant makes the following averments:
i. The applicant is a
local authority authorised to regulate the land use in its area of
jurisdiction;
ii. In order to regulate
the land use, the 2014- scheme was developed;
iii. This 2014-scheme
replaced the erstwhile Boksburg Town Planning Scheme of 1991;
iv. The respondents are
the registered owners of the property that forms the subject-matter
of this application;
v. The property is
situated within the applicant- and the court’s area of
jurisdiction;
vi. The property is zoned
as “residential 1”;
vii. The respondent
contravenes the 2014-scheme by conducting a boarding house on the
property in that a boarding house cannot be
conducted on property
zoned “residential 1” without the written permission of
the applicant;
viii. The respondents
never sought, and never obtained the applicant’s written
permission to conduct a boarding house on the
property.
[19]
The
question that must be answered is whether the fact that the applicant
did not specifically state that the respondents are in
breach of
clauses
xx.x
[6]
of the 2014-scheme, and did not specifically set out the grounds on
which it is alleged that the property is being used to conduct
a
boarding house, e.g. by stating that
x
number of people are living on the property, and only relied on
reports from 2013 and 2015, and photographs taken in 2013, means
that
no cause of action has been made out.
[20]
If a founding affidavit is considered as consisting of two
components, namely a pleading component and an evidence component,
albeit
interlinked and overlapping, I am of the view that the
application pass muster on the pleading component as far as prayers
1, 2
and 3 contained in the notice of motion, are concerned. The
applicant makes the necessary averments from which the conclusion can
be drawn that the 2014-scheme applies, and that the applicant is a
properly established municipality with the responsibility and
authority to regulate land-use in its area of jurisdiction. The
necessary factual averments are also made that would have enabled
the
respondents to determine the exact extent of their alleged breach if
they bothered to consult the 2014-scheme.
[21]
The application was instituted in 2016 with the founding affidavit
deposed to on 9 December 2016. The “Follow Up Inspection
Report” attached to the founding affidavit is dated 2 December
2015. I am accordingly of the view that the applicant also
provided
the court with the necessary evidentiary proof that the property is
used in contravention of the 2014-scheme, in that
the use of the
property can be construed as that of a boarding house. I am
subsequently of the view that the applicant made out
a proper case in
its founding affidavit that substantiates the relief sought in
prayers 1.1-1.3 of the notice of motion against
the respondents cited
in the founding affidavit.
[22]
It then becomes necessary to refer to the content of paragraphs 41-44
of the respondents’ answering affidavit, where
it is stated:
‘
We deny that the
Applicant has established a clear right whatsoever. The Applicant has
failed to explain what the effect of “residential
1”zoning
actually is. In addition the
Applicant has failed to show why
it has the right to prevent or stop the First Respondent and myself
from letting the property out
to people who live there in peaceful,
clean, sanitary and contented circumstances…
The
Applicant has failed to show in what respect our conduct constitutes
a contravention of the scheme and the ordinance. The Applicant
has
not even referred to the relevant terms or sections of the purported
scheme and ordinance…The Applicant has failed to
show why the
Respondent should have obtained prior consent in the first place…the
Applicant has not shown how the First
Respondent and myself committed
and offence or breached the terms of Section 42(5) of the ordinance,
whatever such term might be…’
(My emphasis).
[23]
In paragraphs 20.2 and 29.1 of the answering affidavit the
respondents admit that the property is being let out to “certain
select tenants”. The respondents’ denial that they are
conducting a boarding house, as set out in paragraph 29.2 of
the
affidavit, loses sight of the definition of a boarding house as
contained in the 2014-scheme. The applicant’s averment
that the
property is used as a boarding house must be considered in light of
the definition of a boarding house as contained in
the 2014-scheme,
and the reports and photographs attached to the founding affidavit.
Although the photographs were taken in 2013
they provide substance to
the reports. In this context the respondents’ admission that
the property is being let out to ‘out
to people who live there
in peaceful, clean, sanitary and contented circumstances’
supports the applicant’s case that
the property is used as a
boarding house.
[24]
Although the 2014-scheme was not attached to the founding affidavit,
the applicant did extend an invitation to the respondents
in the
founding affidavit to obtain a copy thereof if required. In addition
the 2014-scheme is a public document. Every aspect
of uncertainty
which the respondents might have had, would have been extinguished if
the respondents took up the invitation and
requested a copy of the
scheme. It is undeniable that the applicant’s case would have
been clearer if it was stated in the
founding affidavit that the
respondents are contravening the 2014 scheme by the letting of the
units erected on the property to
more than 4 other persons. However,
I am not convinced that the general reference to the property being
used as a boarding house,
with reference to the document wherein the
term is defined, causes the applicant’s founding affidavit to
be vague to the
extent that it does not establish a cause of action,
or to be so vague that the respondents do not know which case they
need to
meet.
[25]
However, as far as prayer 1.4 is concerned, the applicant does not
provide any basis on which the court is able to find what
the
“original status” of the property was that was compliant
and consistent with the zoning certificate, to which the
property
must be restored. It can be assumed or deduced that the applicant
actually wants to pray that the respondents must be
ordered to remove
any structures from the property that causes the property not to
adhere to the directives contained in the current
zoning certificate.
The prayer as it is currently phrased, is however in itself vague.
[26]
In light of the fact that I find that a proper case has been made out
on paper to establish a cause of action sustaining prayers
1.1-1.3,
and in light of the fact that both parties submitted extensive heads
of argument, and in light of the fact that final
relief is sought by
the applicant, I applied the well-known
Plascon Evans
–
principle in considering the application. Once I found that the
applicant’s case is not lacking in substance, the
bare denials
contained in the respondents answering affidavit are not enough to
avoid relief being granted against them.
[27]
Zoning has
been described as “the glue that binds spatial planning, land
use management and land development management”.
[7]
Ownership entitlements are restricted by the imposition of the
provisions of a zoning scheme, and it constitutes a legitimate
deprivation of property if it is done in terms of law of general
application and in a manner that is not arbitrary.
[8]
In an adversarial legal system a court is bound to decide any dispute
before it within the cadre and scope of the evidence placed
before it
by the parties. Despite the importance of land use regulation as part
of the ‘power of government to protect health,
safety, welfare
and morals’, an applicant must make out a proper case on the
papers if it seeks an order enforcing the town
planning scheme
devised to regulate land use in its area of jurisdiction.
[28]
As indicated above, I am of the view that the applicant made out
a case for the relief sought in prayers 1.1-1.3 of the notice of
motion as far as it pertains to the respondents cited in the
application, although the court order is phrased somewhat different
from the orders sought in these prayers. As a result costs would
normally follow the event.
[29]
The one aspect which the respondents raised in their written
heads of argument, but which was not argued before me because the
respondent’s
counsel elected to argue his case solely on the
basis that the applicant does not make out a case on paper, is
however the fact
that on the applicant’s own case, there is a
number of unknown people currently occupying the property. In light
of the fact
that these people will adversely be affected by an order
which may result in the demolition of the structures wherein they are
currently accommodated, and in light of the fact that I am of the
view that prayer 1.4 contained in the notice of motion is vague
and
unclear, I am not currently inclined to grant an order in terms of
prayer 1.4. It would be prudent for the parties to endeavour
to
settle the dispute and for the respondents to apply for the necessary
consent to utilise the property in a manner that provides
for the
“letting the property out to people who live there in peaceful,
clean, sanitary and contented circumstances”
and for the
applicants to consider such an application.
[30]
ORDER
In
the result the following order is made:
1. It is declared that
the respondents’ use of the property known as Erf [...],
Boksburg North (the property), as a boarding
house, is in
contravention of the ‘residential 1’ zoning provisions,
applicable in terms of the Ekurhuleni Town Planning
Scheme, 2014 (the
zoning provisions), and is accordingly unlawful.
2. The respondents are
interdicted and restrained from continuing with any use of the
property, which is not authorised by the zoning
provisions.
3. The respondents are
given leave to duly apply to the applicant for the necessary consent
to use the property as a boarding house,
within one month of the date
of this order.
4. Pending the
finalisation of the application referred to in para 3 above, if duly
made, the
status quo ante
in regard to the respondents’
use of the property remains.
5. In the event of the
respondents failing to submit an application as referred to in para 3
above, or such application being dismissed,
the applicant is given
leave to approach this court, on due notice to the respondents, on
the same papers, duly amplified where
necessary, for further relief
for the implementation of the interdict granted in para 2 above.
6. The respondents are
ordered to pay the costs of the application.
E
VAN DER SCHYFF
ACTING
JUDGE OF THE HIGH COURT
Counsel
for applicant: Adv MC Edwards
Applicant’s
attorneys: Tshiqi Zebediela Inc
Counsel
for respondent: Adv JC Viljoens
Respondent’s
attorneys: JJR Botha Attorneys
Date
of hearing: 11 October 2018
Date
of judgment: 16 November 2018
[1]
My insertion.
[2]
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and others
1974
(4) SA 362
(T) 368B-369A.
[3]
Transnet
Ltd v Rubenstein
2006 1 SA 591
(SCA);
ABSA
Bank Ltd v Kernsig 17
(
Pty
)
Ltd
2011
4 All SA 113
(SCA)
par
23;
Louw
v Nel
2011
2 All SA 495
(SCA)
par
17;
Quartermark
Investments
(
Pty
)
Ltd
v Mkhwanazi
2014
1 All SA 22
(SCA)
;
Democratic
Alliance v Kouga Municipality
2014
1 All SA 281
(SCA)
.
[4]
1972 (1) SA 464
(D) 469C-E.
[5]
Bowman
v De Souza Roldao
1988 4 SA 326
(T);
Commissioner
of Customs & Excise v Bank of Lisbon International
Ltd
1994 1 SA 205
(N)
225–226.
[6]
“xx.x” represents any specific clause or clauses that
could be relevant.
[7]
J Van Wyk
Planning
Law
2
nd
ed,
JUTA, 247.
[8]
Van Wyk,
supra
,
249.