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[2017] ZASCA 167
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Esquire Consulting and Marketing CC and Others v Sea Glades Holdings (Pty) Ltd and Others (1315/2016) [2017] ZASCA 167 (30 November 2017)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1315/2016
In
the matter between:
ESQUIRE
CONSULTING AND MARKETING CC
FIRST
APPELLANT
CHRISTO
STOCKENSTRÖM
SECOND
APPELLANT
GERHARDUS
HAGER DREYER NO
THIRD
APPELLANT
(IN
HIS CAPACITY AS TRUSTEE OF THE
G
H DREYER FAMILIE TRUST, IT7829/02)
FRANCIS
DELINA DREYER NO
FOURTH
APPELLANT
(IN
HER CAPACITY AS TRUSTEE OF THE
G
H DREYER FAMILIE TRUST, IT7829/02)
SIX
FIFTEEN INVESTMENTS (PTY) LIMITED
FIFTH
APPELLANT
THOMAS
ROBERT PEACOCK EDWARDS
SIXTH
APPELLANT
MARTHINUS
JAKOBUS RUDOLF MARX
SEVENTH
APPELLANT
DR
IVAN MARX MEDFORUM
EIGHTH
APPELLANT
INCORPORATED
BHARATKUMAR
KANTILAL MEHTA
NINTH
APPELLANT
ASHLEY
HODEN PARKER NO
TENTH
APPELLANT
(IN
HIS CAPACITY AS TRUSTEE OF
THE
ASHLEY PARKER FAMILY TRUST
TM
5789/1994)
BEVERLEY
JOAN PARKER NO
ELEVENTH
APPELLANT
(IN
HER CAPACITY AS TRUSTEE OF
ASHLEY
PARKER FAMILY TRUST
TM
5789/1994)
ALAN
ROLAND COUSINS NO
TWELFTH
APPELLANT
(IN
HIS CAPACITY AS TRUSTEE OF THE
ASHLEY
PARKER TRUST TM 5789/1994)
CORNELIS
ABRAHAM TROSKIE NO
THIRTEENTH
APPELLANT
(IN
HIS CAPACITY AS TRUSTEE OF
THE
BOET TROSKIE KINDERS TRUST
TMP
1447/2015)
STEPHANUS
FRANCOIS NEL NO
FOURTEENTH
APPELLANT
(IN
HIS CAPACITY AS TRUSTEE OF
THE
BOET TROSKIE KINDERS TRUST
TMP
1447/2015)
JACOBUS
GERHARDUS TROSKIE NO
FIFTEENTH
APPELLANT
(IN
HIS CAPACITY AS TRUSTEE OF
THE
BOET TROSKIE KINDERS TRUST
TMP
1447/2015)
CEDRIC
JOHN PETERSON NO
SIXTEENTH
APPELLANT
(IN
HIS CAPACITY AS TRUSTEE OF
THE
BOET TROSKIE KINDERS TRUST
TMP
1447/2015)
JEMMA
ANN SURRIER
SEVENTEENTH
APPELLANT
and
SEA
GLADES HOLDINGS (PTY) LTD
FIRST
RESPONDENT
NEVIL
LEIGHTON HULETT
SECOND
RESPONDENT
KOUGA
MUNICIPALITY
THIRD
RESPONDENT
EASTERN
CAPE LIQUOR BOARD
FOURTH
RESPONDENT
Neutral
citation:
Esquire
Consulting and Marketing CC v Sea Glades Holdings (Pty) Ltd
(1315/2016)
[2017] ZASCA 167
(30 November 2017)
Coram:
Ponnan,
Bosielo, Leach and Mathopo JJA and Ploos van Amstel AJA
Heard:
10
November 2017
Delivered:
30
November 2017
Summary:
Simultaneous
applications for rezoning and subdivision of land brought under the
Land Use Planning Ordinance 15 of 1985, Cape (LUPO):
subdivision
granted but rezoning of certain erven to business deferred for
further information: later application brought for rezoning
of those
erven to business: this construed as part of original application
that had been deferred: two year utilisation period
envisaged in s
16(2)
(a)
of LUPO therefore not applicable: property in any event utilized for
business purposes as envisaged by LUPO within that period:
claim for
an interdict based on allegation that property’s use for
business purposes was illegal accordingly dismissed.
ORDER
On
appeal from:
Eastern
Cape Division of the High Court, Port Elizabeth (Goosen J sitting as
court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Leach
JA (Ponnan, Bosielo and Mathopo JJA and Ploos van Amstel AJA
concurring)
[1]
The principal issue that has to be decided in this matter is whether
the immovable property owned by the first respondent and
more fully
described as erf 3306 Sea Vista, in the Kouga Municipality (erf 3306)
is zoned for business purposes under the Land
Use Planning Ordinance
15 of 1985, Cape (LUPO). The appellants contend it is not and that
the respondents ought therefore to have
been interdicted by the court
a quo from using it for a business purpose. The respondents adopt the
contrary standpoint. The outcome
of this appeal turns on the
resolution of this issue.
[2]
The appellants are either the owners of immovable property, or the
trustees of trusts which own immovable property, in what
is known as
Marina Village, in which erf 3306 is also situated. Marina Village,
in turn, forms part of the well known St Francis
Bay Marina at St
Francis Bay, Eastern Cape. The development of Marina Village, which
is described as being the final phase of the
St Francis Bay Marina,
was carried out by the first respondent which appears to be the alter
ego of its managing director, the
second respondent. The first
respondent is also the registered owner of erf 3306.
[3]
In December 2015, the appellants applied to the Eastern Cape Division
of the High Court, Port Elizabeth for an order interdicting
and
restraining the respondents from conducting any business whatsoever
on erf 3306. They alleged that the first and second
respondents
were in the process of establishing a restaurant business on erf 3306
which, they alleged, was contrary to the existing
town planning
scheme and zoning of the property. At the same time, they sought an
order interdicting the fourth respondent, the
Eastern Cape Liquor
Board, from issuing the first and second respondents with a liquor
licence for the premises. The third respondent,
the Kouga
Municipality, within whose municipal area the St Francis Bay Marina
falls, was also joined as an interested party although
no relief was
sought against it. For convenience, I intend to refer to the third
respondent simply as ‘the municipality’.
Both it and the
fourth respondent played no active part either in the proceedings in
the court a quo or before this Court.
[4]
Although the appellants initially sought interim urgent relief, this
was later abandoned and by the time the matter came before
the court
a quo they sought final relief. This was strenuously opposed by the
first and second respondents. The court a quo ultimately
concluded
that the appellants had not established that it was unlawful to
conduct a restaurant on the erf in question in terms
of its current
zoning. Accordingly, it dismissed the appellants’ application
with costs, although it subsequently granted
leave to appeal to this
Court.
[5]
To resolve the current dispute regard must be had to the history of
erf 3306. In many respects, this history is shrouded
in mystery
due to deficiencies in the papers filed in the proceedings, but what
can be gleaned from what was alleged is the following.
What is now
known as Marina Village originally formed part of what was more fully
described as ‘The Remainder of Portion
32 of the Farm
Goedgeloof No 745, St Francis Bay’, a property zoned for
agricultural use. The first respondent desired to
develop a portion
of this farm in order to extend the already existing St Francis
Marina. Its proposal in this regard involved
the excavation and
construction of a canal linking into an existing canal of an earlier
development of the Marina; the creation
of an island surrounded by
water; and the subdivision of the property into various erven, mostly
residential.
[6]
In order to give effect to this proposed development, the first
respondent applied to the municipality under s 16 of LUPO for
a
rezoning of the land it wished to develop and, under s 24 of LUPO,
for the subdivision of the property. I should immediately
record that
ss 22(1)
(a)
of LUPO provides that no application for subdivision involving a
change of zoning may be considered ‘unless and until the
land
concerned has been zoned in the manner permitting of subdivision’,
But s 22(1)
(b)
goes on to provide that this shall not preclude applications for
rezoning and subdivision being considered simultaneously. The
first
respondent therefore simultaneously applied for subdivision and
rezoning. These applications appear to have been supported,
inter
alia, by a drawing dated September 2001 bearing the number
SFM/LH/501. Unfortunately neither the applications nor this drawing
were included in the papers filed in the court below, but the first
respondent’s allegation in a supplementary affidavit
(p 266)
that such plan was identical to a plan annexure NLH 12 (p 271) dated
August 2003, is not disputed (all the appellants disputed
was that
this latter plan was not attached to the 2001 applications, which in
the light of it being dated 2003 is obvious). As
appears from this
plan, the respondents sought the sub-division of the land it wished
to develop and its rezoning to reflect 148
erven (62 canal erven and
86 non-canal erven) to be zoned as residential, one canal erf and two
private space erven to be zoned
as ‘Open Space II’,
various roads to be zoned as ‘Transport Zone II’ and two
further erven (reflected on
the plan as the disputed erf 3306 as well
as erf 3295) to be zoned as ‘Business Zone II’. Of the
148 residential erven,
it appears that the respondent applied for
certain of them to be zoned as ‘Residential Zone I’ and
others as ‘Residential
Zone II’ but these details are
unknown and are not relevant to the present dispute.
[7]
In any event, on 13 December 2001 the municipality considered these
applications and resolved as follows:
‘
(i) That the
subdivision of a Portion of the Remainder of Portion 32 of the Farm
Goedgeloof No 745 be approved in terms of Section
25 of Ordinance 15
of 1985 the Land Use Planning Ordinance subject to the following
conditions:
(a) The subdivision
be according to drawing No SFM/LH/501 dated September 2001 subject to
condition (b):
(b) That the
subdivision makes provisions for the following land uses:
1.
Residential Zone I
-
62 Canal erven – average size – 117m
2
-
86 Non-canal erven – average size – 899.3m
2
2.
Open Space Zone II
-
1 Canal Erf
-
2 Private Open Space Erven
3.
Transport Zone II
- Roads
. . .
(ii) That the land
use applications for Residential Zone II and Business Zone II be
deferred in order to obtain more detail thereon
from the applicant .
. .’
[8]
Quite what happened in respect of the application to rezone certain
of the erven as ‘residential zone two’ is uncertain
but,
as I said, those erven are of no relevance to the present dispute.
What is of importance in regard to erven 3306 and 3295,
is that the
decision to defer their zoning flies in the face of ss 22(1)
(a)
of LUPO which, as already mentioned, provides that no application for
subdivision involving a change of zoning may be granted until
the
land concerned has been zoned ‘in a manner permitting of
subdivision’. In the case of those two erven the municipality
put the cart before the horse, so to speak, by first granting the
subdivision and leaving the rezoning for later decision. Be that
as
it may, the legality of this resolution has never been challenged
and, on the strength of well-known authority, the municipality’s
administrative decision in this regard must stand.
[9]
Armed with this resolution, the respondents proceeded to construct
the necessary canals to extend the marina, subdivided the
erven in
terms of the approval, built roads, laid on infrastructure such as
water, sewage and drainage, and generally conducted
themselves as if
the Marina Village development had been finally approved. But of
course it had not and there was still the unresolved
question of the
zoning of erven 3306 and 3295.
[10]
To deal with this, instead of amplifying their already existing
application for rezoning, the respondents, by way of a fresh
application, applied to the municipality for those erven to be
rezoned as ‘Business Zone II’. This application was
eventually approved by the municipality on 23 September 2004. By the
time this was done, the provision of bulk services necessary
for the
development had already been provided, subdivision of the erven had
taken place and at least certain of the residential
properties had
been sold to new owners. Pursuant to the rezoning in September 2004,
the general plan of the subdivision of the
development was finally
approved on 17 October 2005.
[11]
The first and second respondents submitted various site development
plans for Marina Village, and in April 2006 the municipality
further
approved a site development plan for the property involving a mixture
of land uses. In respect of erf 3306 the plan reflected
mooring
jetties being provided in a mooring basin created out of a large
segment of the erf immediately adjacent to a canal being
submerged
under water. It also provided for fishermen’s cottages, a
slipway, shops, a restaurant, a village square, an oyster
bar, a boat
club house, and parking and loading facilities. Aerial photographs
taken in 2007 showed that although the mooring basin
had been
constructed by then, no jetties had yet been installed.
[12]
As often happens in developments of this nature, disputes and
tensions arose between the respondents, as developers, and landowners
in their development. Although the precise troubles are not necessary
to detail, one dispute related to the provision of mooring
facilities
for landowners. Eventually a so-called ‘settlement agreement’
was concluded between the first respondent
and an organisation known
as the Marina Village Homeowners Association. The latter was
represented at the time by the second appellant
in these proceedings;
he being an attorney and landowner in the Marina Village (he is also
the appellants’ attorney of record
and he and his wife are the
sole members of the first appellant.) That agreement, dated 9 August
2008, dealt inter alia with matters
such as moorings to be erected on
erf 3306 and the right of landowners in Marina Village to use such
moorings, the site development
plan for erf 3306, and the right of
the homeowners association to have access to the commercial, business
and leisure facilities
developed on erf 3306. It was pursuant
to this that floating jetties came to be built in the mooring basin.
[13]
It is clear from the terms of this agreement that the second
appellant regarded erf 3306 as having been zoned for business
purposes. However, in October 2015, when he learned that a restaurant
was being built on the property, he took offence to what
he stated in
the founding affidavit was ‘an unlawful invasion of the
appellants’ privacy and right to peaceful and
undisturbed
possession of their properties’ likely to disturb the tranquil
atmosphere of the ‘peaceful residential
character of Marina
Village and surrounding residential properties’ – all of
which is somewhat rich when one knows
that he had known for years the
property was zoned for business purposes. In any event, the second
appellant immediately engaged
the services of a town planner, Mr C J
J Els of Pretoria, and the two of them went to St Francis Bay and
trawled through the records
of the municipality to see if they could
find a way to attempt to stop the development on erf 3306. They
thereafter consulted with
senior counsel in Pretoria and prepared
papers for an urgent application in which they sought to interdict
the respondents from
proceeding with the construction of the
restaurant. At some stage the other appellants were drawn in to
support the application.
[14]
The argument the appellants came up with was this:
(a) The property had
been subdivided by way of the municipal resolution of 21 December
2001;
(b) By 23 September
2004 when the municipality approved the rezoning of erf 3306, bulk
services had been installed by the respondents
and at least one land
unit had been registered as envisaged by s 27(1) of LUPO, so that the
subdivision of 21 December 2001 had
by then already been deemed to be
confirmed under s 27(3);
(c) In these
circumstances the rezoning affected by the municipality’s
decision of 23 September 2004 was what the parties
referred to as a
‘standard’ rezoning in which there was no related
subdivision – in contrast to a rezoning in
terms of a
substitution scheme in which there is always a related subdivision of
the property concerned;
(d) Section
16(2)
(a)
(i) of LUPO, which deals with standard rezonings,
provides that such a rezoning lapses within a period of two years in
the event
of the land concerned not being ‘utilised as
permitted in terms of the zoning granted by the said rezoning’
within
that period;
(e) As erf 3306 had
not been utilised for business purposes within two years from the
date of its rezoning for business purposes
in September 2004, or so
the appellants contended, such rezoning had lapsed (of which they had
been unaware until the second appellant’s
investigations in
November 2015);
(f) The construction
of a restaurant was consequently illegal in that it offended the
municipal zoning scheme in terms of which,
so the argument went, the
property was zoned as residential.
[15]
On this basis the appellants contended that, as neighbouring
landowners, they had a clear right not to have a restaurant built
in
their midst which would be infringed if an interdict was not granted
preventing its construction and use on erf 3306. In a well-considered
judgment the court a quo, after having subjected the facts and the
various provisions of LUPO to detailed scrutiny and analysis,
rejected this argument. It is not necessary for present purposes to
analyse its judgment, particularly as the appellants on appeal
raised
two essential disputes for this court’s decision – first,
whether s 16(2)
(a)
(i)
of LUPO was of application as the appellants alleged and, secondly,
whether there had in fact been a utilisation of erf 3306
for business
purposes after it had been rezoned for such use in 2004 as the
respondents contended. It was accepted that if either
of these issues
was decided against the appellant, the appeal must fail.
[16]
The appellants’ argument in regard to the first of these issues
echoed that set out in para 14(a)-(c) above. I have difficulty
with
the argument that the entire subdivision and rezoning of erf 3306 was
effected by the municipality’s decision of 21 December
2001. It may well be that the municipal resolution of that date was
not challenged, and the rezoning and subdivision of, say, the
residential erven may well have been confirmed under s 27(3), but I
cannot accept that the same can be said in respect of erf 3306.
One
cannot be blind to the fact that the rezoning of that erf was
deferred by the municipality at that time and, as I have already
pointed out, LUPO requires the rezoning of a property to be effected
either before or simultaneously with its subdivision. To pretend
that
this had in effect been done, even though it had not, would sanction
the very situation which the lawgiver had wished to prevent,
and
undermine the principle of legality – compare
Cool
Ideas 1186 CC v Hubbard & another
2014 (4) SA 474
(CC) paras 52-53. Even if the decision of 21 December
2001 stands, I therefore do not see how the deeming provisions of s
27(3)
LUPO can be applied to a subdivision not lawfully effected
under the provisions of that ordinance.
[17]
No final decision on this need be taken, however, as on the facts it
seems to me that what in fact occurred, as the municipality
indeed
intended, was that although the subdivision and rezoning was approved
in respect of certain of the erven, the simultaneous
applications for
subdivision and rezoning relating to erven 3306 and 3295 were
effectively postponed for a final decision thereon
to be taken later.
It is significant that the municipality, in considering the
subsequent rezoning application, considered it to
be part of the
initial application for rezoning that had been determined together
with the subdivision application in December
2001. At a meeting of
its Standing Committee for Works, Planning and Development held on 24
August 2004, (p 77 and following) a
recommendation to approve the
rezoning of erf 3306 was passed. The minutes of the meeting record
that reference was made to the
decision of December 2001, that ‘the
Council had referred the proposed Business Zone . . . back subject to
formal application
and Site Development Plans indicating proposed
uses being submitted’ and that the subsequent application for
rezoning had
therefore been submitted for that purpose. In these
circumstances it would be splitting technical hairs, in my view, to
hold that
the subsequent application was a wholly fresh proceeding
and did not form part of the initial application.
[18]
Accordingly, the decision on 23 September 2004 to approve the
rezoning of erf 3306 brought finality in respect of the earlier
application for subdivision that, for all practical purposes, had
been approved in principle in December 2001 and then put on hold
by
reason of there being no finality in respect of the rezoning of erven
3306 and 3295. In these circumstances, the argument that
subdivision
of erf 3306 had been effected before 2004, so that the subsequent
application for rezoning was a standard rezoning
application
attracting the provisions of s 16(2) of LUPO, must fail.
[19]
On this basis alone, as the two year period in s 16(2) upon which the
appellants have hung their hat, does not apply, the appeal
must fail.
But for the sake of completeness, and even if that was not the case,
there seems to me to have been a clear utilisation
of erf 3306 as
permitted in terms of the business zoning before a period of two
years from the rezoning for business had elapsed.
[20]
In this regard the appellants alleged in their founding affidavit
deposed to in 2015 that the erf ‘has not been used
as a shop or
as a restaurant until date hereof’ and that the construction
work that had begun that year constituted ‘the
first concrete
indications of an intention by the first and second respondents to
utilise erf 3306 for any of the purposes authorised
by “business
zone II”’. Bearing in mind that s 2(xxx) of LUPO contains
the definition that ‘“utilisation”,
in relation to
land, means the use of land for purposes of the improvement of land,
and “utilise” has a corresponding
meaning’, this is
a somewhat simplistic view of what was in issue. In the light of this
definition, even if s 16(2) was of
application, it was not necessary
for the erf to have been used as a shop or as a restaurant during the
two year period as alleged
by the appellants – it was
sufficient if the land was used for purposes of improvement for use
in terms of its permitted
zoning.
[21]
And that is precisely what the respondents did. By 2004 it had
excavated a substantial portion of the property to create the
mooring
basin which effectively forms part of a canal that was created; by
2006 the canal walls, required to accommodate the area
of the
restaurant, had been constructed as had the foundations for the deck
of the restaurant which is now been built; and by that
time a wooden
walk way had been built to join the restaurant deck.
[22]
The appellants argued that this evidence was unsatisfactory as it had
been forthcoming in supplementary affidavits filed at
the eleventh
hour. While that is so, the appellants never sought an opportunity to
respond which they could easily have done had
they disputed the
allegations. But more importantly, as already mentioned it is common
cause that by 2004 the respondents had provided
the basic amenities
and infrastructure for the development, including erf 3306. They had
therefore effected improvements upon that
erf with the intention for
it to be used for business purposes, as had been envisaged in the
initial simultaneous applications
for rezoning and subdivision.
[23]
It was argued on behalf of the appellants that the fact that this
basic infrastructure had been provided should be ignored
as it had
been put in place before the application for rezoning was approved in
September 2004, whereas the only period of relevance
was the two year
period immediately after that event. This argument cannot be
accepted. The bulk services were provided to erf
3306 in the clear
anticipation that its ultimate rezoning would be approved, which it
was. It seems to me to matter not that the
infrastructure had been
installed prior to approval of the rezoning, which resulted in the
respondents not having to provide it
thereafter. The fact remains
that by the end of the two year period relied upon by the appellants,
the improvements had been effected
as part of the development of the
erf for the business purposes for which it had been rezoned.
[24]
In these circumstances the second issue relied upon by the appellants
must be determined against them as well. They therefore
failed to
prove their case that the building of a restaurant was unlawful, and
their application was correctly dismissed by the
court a quo.
[25]
The appeal is dismissed with costs.
______________
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellant: J P Vorster SC
Instructed
by: Stockenström Fouché Inc Attorneys, Pretoria
McIntyre
Van Der Post Attorneys, Bloemfontein
For
the 1
st
and 2
nd
Respondent: G J Friedman
Instructed
by: Friedman Scheckter Attorneys, Port Elizabeth
Matsepes Attorneys,
Bloemfontein