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[2017] ZAGPPHC 4
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Fourie v Centuria 266 (Pty) Ltd and Others (97146/2016) [2017] ZAGPPHC 4 (13 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
13/1/2017
Case
number: 97146/2016
In
the matter between
LUKAS
PIETER
FOURIE Applicant
And
CENTURIA
266 (PTY)
LTD First
Respondent
EADVANCE
(PTY)
LTD Second
Respondent
THE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Third
Respondent
THE
MEC:GAUTENG DEPARTMENT OF EDUCATION Fourth
Respondent
JUDGMENT
BAM
J
1.
The applicant, on an urgent basis, lodged an application against the
first and second respondents for a final interdict to prohibit
them
from operating a school on a property on the Eastern side of
Pretoria, previously known as Holding 1, Shere Agricultural Holdings.
The application was opposed by the second respondent, on both urgency
and the merits. First respondent filed a Notice to Abide.
2.
On 11January 2017, after having heard argument, due to time
constraints, I decided that it would be in the interests of the
parties to record my conclusion and to furnish my reasons later. I
then made the following order:
1.
The application is urgent;
2.
The application is dismissed in its entirety;
3.
The applicant is ordered to pay the costs,
including the costs of two counsel.
REASONS
(Due to time constraints not fully comprehensive.)
3.
The property in question is situated on the North-Western corner of
Lynnwood Road and Dudley Avenue. Lynnwood Road, which became
Graham
Road, is a main road, stretching from almost the centre of the city
to the extreme eastern areas. Dudley Avenue is a secondary
gravel
road, giving access to small holdings to the North. The property is
registered in the name of the first respondent. The
second
respondent, who refers to itself as
Spark School Silver Lakes,
leases Holding 1 from the first respondent with the intention to
use it as an education facility for previously disadvantaged
children.
4.
The applicant is since 1998 the registered owner, and occupier, of
two adjacent small holdings, Holdings 2 and 3, measuring respectively
1.2ha and 2ha. Properties 2 and 2 are in close proximity of Holding
1, almost adjoining. In this respect it was pointed out by
the
respondents that Holding 1is not immediately adjacent to holding 2
but that there is another property in between Holdings 1and
2.
5.
In 2004 the previous owner of Holding 1was granted the right to
conduct the operation of a conference facility, a chapel, a
restaurant of 1300 square metres and covered outside seating of 400
square metres, on the premises. This was granted in terms of
the then
Peri-Urban Town Planning Scheme of 1975. The restaurant business,
however, closed in 2014.
6.
In September 2016 the applicant became aware that the second
respondent intended to open a school on Holding 1when the second
respondent attached an advertisement depicting this on the outside
fence wall of Holding 1. Upon instructions by the applicant
enquiries
were then made to the third respondent by a Mr Johan vd Merwe, a Town
and Regional Planner, about the zoning of the said
premises and
whether any application was lodged by the respondents to procure
rights for an educational facility. Despite several
written requests,
third respondent did not respond.
7.
It is the applicant's case that the conducting of a school on Holding
1is unlawful and constitutes a criminal offence in view
thereof that
the small holdings in that area are restrictively zoned, reflected in
the
Zoning Certificate
dated 26 /09/2016 (Annexure LF 11, page
56 of founding affidavit), referred to as
"UNDETERMINED",
in terms of the Tshwane Town Planning Scheme of 2008, revised in
2014, providing that it may only be used for purposes of agriculture,
a farm stall and a dwelling house.
8.
In terms of the said
Zoning Certificate
the following purposes
for which land and buildings may not be erected are:
Industry;
"Noxious Industry; Scrap yard;
and
mini storage."
9.
In opposing the application the applicant denied that establishing
the school was unlawful in that no restricting conditions
apply
anymore. In this regard it was contended that the grant to conduct
the business of a restaurant, conference facility etc.
negated the
restrictive condition and zoning referred to above. Accordingly the
second respondent endeavoured to persuade the court
that the
establishment of a
small school
fell
within the ambit of the meaning of
conference
centre
and
training,
granted to the previous owner of Holding 1. I
do not find it necessary to deal with each and every argument of the
second respondent
in that regard. It suffices to say that that
contention was not substantiated. The establishment of a school on
Holding 1was clearly
not authorised.
10.
It is clear, and indeed common cause, that the applicant, in his
capacity as owner of properties in close proximity of Holding
1,
which are subject to the same zoning, had locus standi to bring this
application. See
JDJ Properties v Umgeni Local Municipality
2013(2) SA 395 SCA at 407, par [29], to 408, par [30], and the
decisions referred to.
11.
Whether the applicant should succeed with his application, however,
is not a foregone conclusion. The applicant based his case
solely on
the allegation that the school was unlawfully established. What,
in my view, has to be considered, and taken into
account, are the
surrounding circumstances, the probable impact on the applicant's
rights in establishing the school, and any possible
prejudice and
damage that may be caused to the applicant.
12.
The following aspects are therefore relevant:
12.1 The school opened on
11January 2017 (the day the matter was argued) and about 97 children,
in the
small school,
were accommodated. The court took
judicial cognisance of the country wide problems with educational
facilities and a news clip that
on 11January 2017 about 40 000
children were not yet accommodated. In this regard first respondent
mentioned a figure of 3000 in
the province of Gauteng. On behalf of
the second respondent the issue of education of previously
disadvantaged children was submitted
to be of cardinal importance. I
agree. The argument also referred to the situation, should the
applicant succeed, that the children
will be deprived of their right
to education;
12.2 The previous owner
of Holding 1,as alluded to above, was permitted to conduct a
restaurant on the premises as well as a conference
facility and a
church. (See par 3 above).There is no indication that the applicant
ever complained about this enterprise.
12.3 It appears that,
according to the respondents, that the main access gate to Holding
1is in Lynwood Road and not in Dudley Avenue,
the street from where
the applicant enters his properties.
12.4 Dudley Street is a
gravel road, a public road, used by members of the public, including
people who previously visited the restaurant
and other facilities on
Holding 1. Despite the applicant's complaint that the street will
carry more traffic, there is no proof
of any probable damage to the
road that may cause him prejudice.
12.5 Despite applicant's
complaints about the possible impact on the service infrastructure on
the water and electricity supply,
etc., in the area, it appears that
those amenities are supplied from different lines or sources to the
respective holdings which,
in any event, render services to the
existing facilities on Holding 1. In this respect the school facility
will therefore have
no direct impact on the applicant's properties.
12.6 The complaint that
the school will alter the rural character of the applicant's
properties is unfounded, especially in view
of the previous situation
on Holding 1 and the neighbouring shopping centre in which several
other business ventures, including
Crawdaddy's Restaurant
and
The Fishing Pro Shop,
are situated, the latter directly
adjoining Holding 3. This situation is clearly depicted in Annexure
L5, a google map of the area.
In this regard it was contended by the
second respondent that the area is rapidly developing and not a rural
area anymore.
12.7 The third respondent
did not file any papers. According to the applicant he was verbally
informed that the third respondent
would interfere when something
illegally is committed on Holding 1.
12.8 The respondents have
already submitted a re-zoning application to the third respondent
with the intention to increase the number
of pupils to that of a
large school.
13.
In argument it was submitted by Mr Rip that the applicant, seeking a
final interdict, failed to establish the requirements of
such legal
assistance.
(a)
In respect of the issue whether the applicant has
proved a clear right it has to be considered whether the applicant
has established
the right he seeks to protect.
(b)
Secondly the applicant was called upon to prove
that the establishing of the school interfered with his rights. That
includes that
the applicant had to show that the alleged interference
with his rights would cause prejudice.
(c)
Thirdly it was required of the applicant to prove
that he had no alternative remedy.
14.
It is trite that before an application for final interdict can
succeed, all three requirements have to be present.
HOTZ and
OTHERS v UCT
2016(4) All SA 723 SCA par [29].
15.
In this regard I concluded as follows:
15.1 In respect of the
requirement of a clear right, I have already indicated that the
applicant did have locus standi. However,
in considering all the
relevant circumstances to which I have alluded above, a clear right
had not been proved.
15.2 Taking into account
the relevant circumstances, it was clear that the establishment of
the school did not interfere with any
rights of the applicant and
did, or will not, cause him any prejudice.
15.3 In regards to an
alternative remedy, in view thereof that the third respondent, the
City of Tshwane, is the official body clothed
with jurisdiction and a
duty to monitor and control any alleged unlawful conduct, the
applicant, in the circumstances had an alternative
remedy at his
disposal, if the third respondent was reluctant to investigate the
situation, to apply for a mandamus compelling
the third respondent to
attend to the matter. It went unexplained why that was not done. On
the probabilities the whole issue could
have been laid to rest after
such steps had been taken.
16.
Accordingly I arrived at the conclusion to dismiss the application.
A
J BAM JUDGE
12 January 2017