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[2017] ZAFSHC 24
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Du Plessis v Labuschagne and Others (3799/2016) [2017] ZAFSHC 24 (16 February 2017)
IN
THE HIGH
COURT OF SOUTH AFRICA,
FREE
STATE D
I
VISION,
BLOEMFONTEI
N
Case
number: 3799/2016
In the
matter between:
THERESA
DU
PLESSIS
Applicant
and
DIRK
MALAN
LABUSCHAGNE
1st
Respondent
ELMA
YORK
2nd
Respondent
(In their
capacities as partners of L & V Attorneys)
CHRISTINA
JACOBA
FENWICK
3rd
Respondent
MANGAUNG
METROPOLITAN
MUNICIPALITY
4th
Respondent
CORAM:
NICHOLSON, AJ
HEARD
ON:
16 FEBRUARY 2017
JUDGMENT
BY:
NICHOLSON, AJ
DELIVERED
ON:
16 FEBRUARY 2017
REASONS
[1] The
applicant in this matter seeks a final prohibitory
interdict against the first and second respondents,
restraining
them from operating an attorney's practice from the property situated
at 76 Paul Roux Street, Dan Pienaar, Bloemfontein
(the property) in
contravention of the conditions of the Title Deed to the property and
the Bloemfontein Town Planning Scheme (the
Scheme) read together with
Townships Ordinance 9 of 1969 (the Ordinance). In terms of both the
Scheme and the Title Deed to the
property, the property may only be
used for Single Residential 2 purposes, that of a dwelling. The
Scheme does make provision for
property owners to apply for consent
use to use the property for other designated purposes (section 18
(3)(b)) but, first and second
respondents have not yet made use of
the route provided to obtain the requisite consent use.
[2] As a
final interdict is a drastic measure that resolves the matter between
the parties, the applicant must prove the following
in order to
succeed with her application:
1.
That she has a clear right;
2.
That an injury or damage is actually committed or that there is a
reasonable apprehension of an injury or harm;
and
3.
There is no other satisfactory remedy available to her. (Erasmus
Superior
Court Practice
2nd edition vol 2 D6-12)
[3] The
Court is satisfied that the applicant has established her
locus
standi
in the matter and that, as a property owner of a
neighbouring property, she has a clear interest in this matter.
(Pick
'n Pay Stores and
Others v
Teazers
Comedy and Revue
CC
[2002] 3 All SA 147
(W)
at 154).
[4] The
court is also satisfied that the applicant has established the
reasonable apprehension of harm. She has clearly indicated
that she
purchased her property in what is predominantly a residential area,
with a reasonable expectation that she would enjoy
the amenities
offered by such a zoning. The fact that a plethora of businesses,
offices and home industries are now operated from
properties in the
area does not diminish her right to expect that the owners of such
properties will be required to apply for the
appropriate consent
use. That other property owners are using their properties for
various purposes, either with or without
having first obtained the
requisite consent use, does not excuse the first and second
respondents from their legal obligations
with regards to the use of
their property. In other words, that the applicant may already be
suffering the harm she now apprehends,
as a consequence of the
behaviour of other property owners, does not excuse the respondent's
unlawful behaviour. The applicant
is within her rights to attempt to
preserve the amenities that she fears the continued growth of such
property use in the area
will further erode.
[5]
Furthermore, by their own admission, first and
second respondents are aware that they lack the
requisite
consent use to operate their legal practice from the property.
Whether the legal practice of L
&
V Attorneys is referred to as an "office" or as a
"Business" makes no difference to the substance of the
Applicant's
claim that the first and second respondents are using the
property in contravention of the applicable zoning and Title Deed
restrictions.
Respondents are required, in terms of section 3 of the
Scheme, to comply with the conditions registered against the property
unless
these have been properly amended. The first and second
respondents have, on their own admission, not yet sought such
amendment.
[6] The
third requirement that the applicant must meet in order to succeed
with her application however, requires some deeper consideration.
The
first and second respondent have argued that the Supreme Court of
Appeal decision in
Food
and
Allied
Worker's
Union
v
Scandia
Delicatessen
CC
[2001] 3 All SA 342
(A)( Scandia)
binds
this court to dismiss the application in circumstances where a
suitable alternative remedy is available to the applicant.
In other
words, the applicant must show cause why, in circumstances in which
an alternative remedy exists, this remedy will not
be satisfactory.
[7]
Scandia
related to a matter in which a criminal
prosecution was an alternative to the order sought and the court
pronounced that there was
no evidence before the court that said
remedy would not satisfy the needs of the appellant in that case.
Respondents argue, that
by analogy, the interdict should, in this
case, be dismissed on the basis that section 41 of the Ordinance
provides for the prosecution
of persons in breach of the Scheme.
Furthermore, they aver that the applicant has, on her own papers,
acknowledged that she was
aware that the first and second
respondent's use of the property for the running of their legal
practice constitutes an offence.
She offered no reasons why this
remedy would not be satisfactory. First and second respondents would
thus motivate that the applicant
must stand or fall on the affidavits
filed and thus, as there is a clear alternative remedy available to
the applicant, and in
the absence of any indication why it is not
adequate in the present case, the court is bound by
Scandia
and must dismiss the application for a final interdict with
costs.
[8] First
and second respondents only raised this issue in the court on 9
February 2017 and applicant was thus granted an opportunity
to
supplement her arguments by way of supplementary heads of argument,
to which the first and second respondents were given an
opportunity
to respond. These heads have been carefully scrutinised as has the
various authority submitted by counsel in their
Heads.
[9]
Scandia
is authority for the view that criminal prosecution
may be a suitable alternative remedy
in
appropriate
cases
but, as was pointed out by Rogers
J
in
Berg
River
Municipality
v Zelphi
2013 (4) SA 154
at par [47], this
will not always be the case. And thus the court must assess its
suitability as an adequate remedy. The Court
in
Berg
River
took the view that a criminal remedy is not an "ordinary
remedy". Par [47] Furthermore, the Court found that it also did
not offer-the individual similar relief to that of an interdict.
[10] The
court in
Berg
River
emphasised that
interdicts are the usual means by which municipalities enforce zoning
schemes and restrictions. (par [48]) Certainly,
the SCA in
Outdoor
Media
(Pty) Ltd
v
City
of
Cape
Town
[2013] ZASCA 46
upheld
the view that a criminal remedy was not a satisfactory alternative to
an interdict preventing the unlawful displaying of
advertising signs.
It must be acknowledged, however, that in that case, past experience
evidenced that criminal sanctions in such
cases have been
ineffectual. Par [35].
[11] In
conclusion, the court finds that in the present case, the criminal
sanction provided in terms of section 41 of the Ordinance
does not
constitute an appropriate alternative remedy. The applicant is
attempting to secure the immediate cessation of the unlawful
use of
the property and the criminal penalties offered by the ordinance
would, it is believed, do little to deter the respondents.
Criminal
prosecution is at the discretion of the State and serves to punish
past misconduct. To allow the respondents, in their
capacities as
partners in L
&
V attorneys to pay a fine and continue with their behaviour
would be to undermine the Municipality's zoning regulations and allow
the respondents to continue unlawful behaviour until such time as
their unlawful use is made lawful.
[12]
Suspension of interdicts restraining unlawful land use may well
create an invitation to the public to use land illegally in
the hope
that the use will be legalised in due course and thus effectively
protect such unlawful usage. The court appreciates that
the granting
of an interdict restraining the first and second respondents would
effectively prevent L
&
V Attorneys from conducting their business. As lawyers, first
and second respondent should have considered that possibility when
they embarked on using the property for a purpose for which it is not
zoned. That said, the court has considered the submissions
of the
first and second respondent in this regard.
ORDER:
[13] For
the above reasons, and after careful consideration of the
papers and arguments presented to the court, the court
orders that:
1.
The applicant's application for an interdict restraining the first
and second respondents from operating a
legal practice from the
property is granted.
2.
The operation of the interdict is suspended until 1 April 2017 to
allow the first and second respondents time to
secure alternative
premises from which to operate their legal practice until such time
as the requisite consent use is obtained.
3.
The Fourth respondent is ordered to monitor the use of the property
to ensure that it is in compliance with the scheme
and to take such
steps as may be necessary to enforce usage in terms of the Scheme.
4.
First and second
respondents
to
pay the party and
party costs
of
this application.
__________________
C.
NICHOLSON, AJ
On
behalf of applicant:
M.
Volschenk
Instructed
by:
Phatshoane Henney Inc.
Bloemfontein
On
behalf of
1st
&
2nd
respondents:
D.M.
Labuschagne
Instructed
by:
L & V Attorneys
Bloemfontein