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[2017] ZAFSHC 126
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Du Toit N.O. and Others v Coenoe 90 CC and Others (1584/2017) [2017] ZAFSHC 126 (2 August 2017)
SAFLII
Note:
Certain personal/private details of parties or witnesses
have been redacted from this document in compliance with the law
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
no: 1584/2017
In
the matter between:
HENDRIK
ENSLIN DU TOIT N.O.
[In
his capacity as co-trustee of the
Henmar
Trust]
MARTHA
MAGDALENA VISSER N.O.
[In
her capacity as co-trustee of the
Henmar
Trust]
PIETER
GENEKE DU TOIT N.O.
[In
his capacity as co-trustee of the
Henmar
Trust]
AGENT
MNGOMEZULU
JACOBUS
CHRISTOFFEL DU PLESSIS
DANIEL
JOHANNES BEZUIDENHOUT
JACOBUS
PETRUS HENDRICUS MARX
NANCY
ANNIE HARRIET BRUITENBACH
and
COENOE
90 CC
[Registration
number: 2005/004930/23]
FRANCOIS
RETIEF BESTER
SILVIA
ELIZABETH BESTER h/a
PANDORA’S
GUESTHOUSE
DIHLABENG LOCAL
MUNICIPALITY
First
Applicant
Second
Applicant
Third
Applicant
Fourth
Applicant
Fifth
Applicant
Sixth
Applicant
Seventh
Applicant
Eighth
Applicant
First
Respondent
Second
Respondent
Third
Respondent
Fourth Respondent
CORAM:
HEFER, AJ
JUDGMENT:
HEFER, AJ
HEARD
ON:
15 JUNE 2017
DELIVERED
ON:
2 AUGUST 2017
[1]
Pandora’s Guesthouse is situated at and conducted as a
guesthouse from number [...] K. S., Bethlehem, Free State Province.
[2]
The First Respondent is the owner of the property where Pandora’s
Guesthouse is situated. The First Respondent’s
main place of
business is also at the same address.
[3]
The Third Respondent operates Pandora’s Guesthouse on the said
premises. According to the Applicants, the Third Respondent
is indeed
trading as Pandora’s Guesthouse. According to the Respondents
however, the Third Respondent only operates the guesthouse
on behalf
of the First Respondent.
[4]
First to Ninth Applicants are the respective owners of the properties
mentioned in Kwagga Street, La Provance, Bethlehem and
all the
Applicants, with the exception of the Third Applicant, reside in
Kwagga Street with their respective families.
[5]
According to the Applicants, the Respondents’ use of the
property concerned, being Erf [...], situated at number [...]
K. S.,
is being run as a business in contravention of the residential use of
the property as required by the zoning of the property
and is
therefore being run illegally. The Applicants therefore seek an order
in terms of which the Respondents be interdicted from
such illegal
use of the property concerned and further that all interim uses of
the property, that may be in contravention of the
residential use of
the property as required by the zoning of the property be interdicted
pending any application that the Respondents
may launch to the
relevant authority.
[6]
According to the Applicants, the zoning or permitted land use of Erf
[...], Bethlehem, is that of “single residential”,
which
means that it may be used as a dwelling house. With the consent
of Fourth Respondent’s council, it may be used
for purposes of
“place of public worship, place of instruction, instructional
building or a place of assembly”, but
such consent had not been
granted by the Fourth Respondent to the First, Second nor Third
Respondent.
[7]
In terms of the stipulations of the Bethlehem Town Planning Scheme, a
dwelling house and dwelling unit are defined as “a
self-contained interleading set of rooms used only for the living
accommodation and housing of a single family together with such
outbuildings as are ordinary used therewith.” The use of such
property for purposes as a guesthouse would thus fall outside
this
definition and would therefore be illegal. According to the title
deed of Erf [...] Bethlehem, the owner, being the First
Respondent,
may only use the property in accordance with the stipulations of the
Bethlehem Town Planning Scheme. The building plans
of the house
situated on the property was furthermore approved for the purpose of
a dwelling house/unit. According to the Applicants,
the use of the
property by the Respondents as a guesthouse or place of accommodation
is thus in contravention of the title conditions
as set out in the
title deed as well as the Bethlehem Town Planning Scheme read with
the relevant ordinances regarding building
regulations.
[8]
The Applicants’ complaints in regards to the use of the
property, save for the illegality thereof, can be summarised as
follows:
(i)
The First and Second Applicants, who reside opposite the property
of
the First Respondent concerned, frequently see large trucks and
construction vehicles parked at the First Respondent’s
property
from where persons alight and enter the property;
(ii)
during January 2017 a party or a function was hosted at the First
Respondent’s
property concerned where more than fifty persons,
of which a number was apparently guests who booked accommodation for
the night
with the Third Respondent, attended. During the course of
the evening the situation got out of hand when people started
drinking,
swearing, yelling and urinating in the street. The SA
Police Services attended to the scene at around 03h00 in the morning
whereupon
the noise and music quieted down. However as soon as the
SAPS vehicle left the scene, the noise and music was turned back on
and
continued until the police arrived again at 07h00. The area in
Kwagga Street was strewn with empty beer and liquor bottles and it
was, according to the Applicants, an absolute chaotic scene.
Apparently the Applicants met on that very same afternoon to
discuss
the “immense night” which they suffered through due to
the noise and nuisance caused by the Respondents’
numerous
guests;
(iii)
the Applicants apparently also observed that there were numerous
taxis and/or vehicles
from Lesotho that visited the First
Respondent’s premises frequently and accommodation was then
offered for these persons;
(iv)
during February 2017 a Big Sky bus, loaded with guests, arrived at
the property upon
which several guests then entered the property of
the First Respondent from about 18h00 that evening. Apart from the
bus there
were also three other vehicles, which vehicles contained
various guests. The bus again picked-up the number of guests which
was
estimated at approximately fifteen the next morning at about
05h00 with lots of noise and disturbance caused in the quiet suburb;
and
(v)
during March 2017 the First Applicant observed, on a regular basis, a
truck
which was parked in front of the First Respondent’s
property of which a photograph was then also appended to the founding
affidavit.
[9]
The Applicants allege that due to the attitude of the First
Respondent to continue with the self-help, contrary to the law and
the rights of the various Applicants, the Applicant live in the
constant fear that the huge functions catered or presented by the
First Respondent during January as well as February 2017 would again
repeat itself at frequent stages.
[10]
The Applicants further contend that the values of the property in the
vicinity of Pandora’s Guesthouse will definitely
decrease if
the First Respondent carries on with conducting his unlawful
business, especially in the manner it is currently conducted
whereby
peace of the neighbours in the neighbourhood is disturbed.
[11]
The Respondents’ opposition to the application is firstly based
on the fact that Second Respondent, in his capacity as
sole member of
the First Respondent as well as the Third Respondent should not have
been joined as parties in the application and
that the application
for that reason should be dismissed against Second and Third
Respondents.
[12]
According to the Respondents a guesthouse has been operated on the
property concerned since 2015. It was however, according
to the
Respondents, never the intention to operate an illegal guesthouse on
the property and because thereof, the Fourth Respondent
was
approached during May 2015 with the aim to establish what the steps
and process the First Respondent had to take and follow
to obtain the
necessary authority and permission to operate a guesthouse on the
property. The Third Respondent, on behalf of the
First Respondent, in
her attempts to obtain the abovementioned necessary authorisation,
was then referred to one Me. K Marais who
was apparently the person
responsible at the Fourth Respondent for application for permission
to operate a guesthouse. Me. Marais
then provided the Third
Respondent with the necessary application forms to be completed as
soon as possible to have the application
of the Fourth Respondent for
the operation of the guesthouse approved. The Second and Third
Respondents then, completed the application
for special permission to
operate a guesthouse from the property. During May 2015 the
abovementioned completed application was
then submitted to the
offices of Me. Marais and the required amounts, which had to be paid
before the application would be considered,
was paid by the First
Respondent. Of importance is that according to Respondents, Me.
Marais also gave permission to operate a
guesthouse on the property
pending final approval of the abovementioned application which was
submitted to her for approval. According
to the Second Respondent, he
remembers a letter that was received from Me. Marais, confirming the
abovementioned consent. However
the said letter could not be found to
attach to the opposing affidavit. It is the case of the Respondents
that in the premises
Me. Marais at all relevant times caused the
Respondents to reasonably believe that the First Respondent is
permitted to operate
a guesthouse from the property pending approval
of the abovementioned application. As a result of the aforementioned,
the guesthouse
under the name and style of Pandora’s Guesthouse
has been operating on the property since May 2015. The Respondents
did not,
however retain a copy of such application.
[13]
According to the Respondents it came to the knowledge of the First
Respondent during November 2016 that the first application
went
missing and that no record thereof exists at the Fourth Respondent.
The Third Respondent, as a result of the aforementioned,
approached
Me. Marais again during the beginning of November 2016 and requested
her to provide the Third Respondent with new application
forms.
Me. Marais then complied with the request and provided Third
Respondent with the necessary forms and zoning certificate
during
November 2016. The Respondents now append all the necessary relevant
documentation pertaining to the latter “second
application”.
The Respondents then further point out that the intention to apply
for special consent to operate a guesthouse
on the property concerned
was indeed advertised in the local newspapers during April 2017. The
second application was then also,
as prescribed, sent to the owners
of the property adjacent to the property concerned via registered
mail. A letter of objection
was then received from the Applicants’
attorneys subsequent to the advertisement referred to. In this letter
of objection
on behalf of the Applicants in the application, the
attorney acting on behalf of the Applicants, Mr. Mihan Bester, then
also referred,
amongst others to the incidents during January as well
as February 2017 as grounds for objecting to the application for
special
consent.
[14]
According to the Respondents, the First Respondent had a discussion
with a representative of the Fourth Respondent, namely
Mr. Masisi who
informed him that the Fourth Respondent will only reject the second
application if valid reasons were raised by
the owners of the
adjacent property to the said property. Of importance is that,
according to the Respondents, Mr Masisi allegedly
informed Third
Respondent as well as the Second Respondent that the First Respondent
can proceed with operating a guesthouse on
the property pending the
final decision by the Fourth Respondent. According to the Second
Respondent he did attempt to obtain a
confirmatory affidavit from Mr.
Masisi, but Mr Masisi indicated that he does not want to become
involved.
[15]
The Respondents then further contend that since May 2015 no objection
and/or complaints have been received against the guesthouse
on the
property concerned from any of the neighbours adjacent to the
property as well as from any residents in the area in which
the
property is situated, nor from the Fourth Respondent. According to
the Respondents the only complaints on which the Applicants
rely are
those referred to which are without basis according to the
Respondents.
[16]
The Respondents then proceed and deal with each of the grounds of
objection referred to above individually.
[17]
The Respondents asked that the application be dismissed. In the
alternative, the Respondents seeks an order in the form of
a counter
application to the effect that the relief sought against the First,
Second and Third Respondents be suspended pending
the finalisation by
the Fourth Respondent of the First Respondent’s application for
special consent to operate Pandora’s
Guesthouse on the property
known as [...] K. S., La Provance, Bethlehem.
[18]
In reply, the alleged temporary consent to operate the guesthouse
pending the finalisation of either the first or the second
application is denied by the Applicants. In particular a confirmatory
affidavit by Me. Marais is then also attached to the replying
affidavit in which she denies in particular that such consent,
pending the finalisation of the application for special consent,
had
been granted by herself. As far as Mr. Masisi’s alleged consent
is concerned the Respondents submit that his remarks
were irrelevant
and uncorroborated since no confirmatory affidavit was appended.
Furthermore, according to the Applicants, Mr.
Masisi is unauthorised
to grant the authority to the Third and First Respondents to operate
a guesthouse.
[19]
What is of further importance is that First Respondent was requested
to cease the illegal operation of the guesthouse during
February
2017. In response to such a request, First Respondent, apparently
represented by Second Respondent, confirmed that it
will proceed with
business as usual in a letter dated 22 February 2017 addressed to Mr.
Mihan Bester.
[20]
In regards to the point of misjoinder, Mr. Buys, on behalf of First
to Third Respondents, referred me to the latter letter.
This
letter is written on a letterhead of “F A Bester duly
authorised for Coenoe 90 CC”. The F A Bester referred to
can
only be the Second Respondent. In the letter it is stated that the
property is indeed registered in the name of First Respondent
of
which the Second Respondent is the sole member. In the same letter
the Second Respondent then also states that the guesthouse
is then
run with this full approval.
[21]
The fact that the property is registered in the name of the First
Respondent does not necessarily mean that it is indeed the
First
Respondent who is running the business as Pandora’s Guesthouse.
Furthermore in the opposing affidavit, the First to
Third
Respondents, in regards to the Third Respondent now states, as was
not done previously, that Pandora’s Guesthouse is
operated on
the property on behalf of the First Respondent by the Third
Respondent. The Applicants did not have this knowledge
prior to the
opposing affidavit being filed.
[22]
In the advertisement in the local newspaper pertaining to First
Respondent’s application for special consent, dated 19
April
2017, the following heading appears;
“
Kennis
geskied hiermee dat Francois Bester/Coenoe 90 CC trading as Pandora’s
…”
[23]
According to this heading it can either be the First - or the Second
Respondent who applied for the special consent. Furthermore
the
Respondents have failed to produce any documentation, and in
particular, financial statements showing that is indeed the close
corporation and not the individual, being the Second Respondent, who
are trading as Pandora’s Guesthouse.
[24]
Second Respondent is, however, cited by Applicants as follows:
“Francois Retief Bester (in his capacity as
sole member of the
First Respondent). Whereas the First Respondent, being the close
corporation, is already before Court as a Respondent,
it is
inexplicable why the Second Respondent was joined in particular in
his capacity as sole member of the First Respondent. However,
the
Second Respondent is already before Court as an adult businessman
residing at a certain address. Being a member of a close
corporation,
does not put a person in a different capacity as is the case when a
person is cited in his capacity as a trustee.
For the reasons set out
above and in particular in regards to the duel identification as an
Applicant in the advertisement referred
to above, I do however find
that the issue of misjoinder in regards to the Second Respondent
should not be upheld.
[25]
It appears however, to be common cause that the Third Respondent is
indeed acting as representative of the First Respondent.
Any remedy
by the Applicants will therefore not lie against the Third Respondent
but only against the First as well as the Second
Respondent.
[26]
Mr. Buys argued that, even where a statute prohibits the doing of a
particular act affecting the public, no person has the
right to
action against another merely because he/she has committed the
prohibited act. It is incumbent on the party complaining,
to allege
and prove that the doing of the act prohibited has caused him/her
some special damage. In this regard he referred me
to the matter of
Von Molkte v Costa Areosa (Pty) Ltd
1975 (1) SA 2557
where the Court
held, with reference to Patz v Greene and Co.
1907 TS 427
, where
there is ample machinery for enforcing the provisions of an
ordinance, it is unnecessary for a member of the public to take
the
initiative unless he can bring himself within the terms of the
general rule, namely that the prohibited act has caused him
or her
some special damage. In the Patz- matter referred to, the so-called
“special damage” was described as “some
peculiar
injury beyond that which he may be supposed to sustain in common with
the rest of the Queen’s subjects by an infringement
of the
law.”
[27]
On this point, Mr. Rautenbach on behalf of the Applicants referred me
to BEF (Pty) Ltd v Cape Town Municipality and Others
1983 (2) SA 387
CPD where it was held that the Applicant who was an immediate
neighbour to the property on which the non-conforming building was
built, did indeed have the necessary locus standi to enforce
compliance with the particular Town Planning Scheme. Grosskopf J,
held that the purposes to be pursued in the preparation of the Town
Planning Scheme suggest that the scheme was intended to operate,
not
in the general public interest, but in the interest of the
inhabitants of the area covered by the scheme or at any rate those
inhabitants who would be affected by a particular provision. With
reference to Patz v Greene supra, it was held that the intervention
of a Court can be sought by any person in favour of whom the
legislature has prohibited the doing of an act, to enforce the
prohibition
without proof of special damages. In
Walele v
City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
CC, the
Constitutional Court also held 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.”
(At p. 182, par. 130).
[28]
Whereas all the Applicants before Court are indeed owners and/or
residents in the same street where the Pandora’s Guest
House is
situated, and it is common cause that the Respondents have not
obtained the necessary authority and consent from the Fourth
Respondent to operate the guesthouse, I find that the Applicants do
have the necessary locus standi to ask for the intervention
of the
Court in the present application.
[29]
The Applicants complain about certain incidents which can be
described as “disruptive” or “noisy”,
nuisances”. According to the Respondents those incidents were
of not such a nature as to warrant the relief as sought by
the
Applicants. It appears to be common cause that a guesthouse, although
not the Pandora Guesthouse, has already been run from
the same
premises since at least the end of 2015. For more than a year there
appear to be no incidents of which any of the Applicants
before Court
complained about. However, all of a sudden since January as well as
February 2017 the Applicants now complains about
certain incidents.
Surely since the end of 2015 there must have been other guests
visiting the premises where the guesthouse is
situated. However,
there were no complaints from any of the Applicants. Now all of a
sudden the Applicants refer to two allegedly
disruptive incidents
during January/February 2017. If one for instance also consider the
vehicle which is allegedly parked across
the road from the residence
of the First Applicant, it appears that it is a broad road and that
the presence of a vehicle as it
appears on the photograph which
formed part of the affidavits, cannot cause any nuisance to the
Applicants and in particular the
First and Second Applicant. I
therefore find that the incidents referred to, does not justify the
relief sought considering for
how long a guesthouse has already been
run from the said premises apparently, with the knowledge of the
Applicants.
[30]
As far as the alleged reduction on the value of the property is
concerned, I am disregarding this factor in totality for purposes
of
the present application. If the operation and location of a
guesthouse per se adversely affects the value of the property, it
will mean that, applications for special consent in particular to
trade as a guesthouse, will never be granted because if it is
granted
it will necessarily have an adverse effect on the value of the
properties in the area concerned. Although the value of
the properly
might be adversely affected by the use and rezoning of certain
adjacent properties, I do not find it as a ground to
grant the relief
as sought by the Applicant in this particular instance. Furthermore,
Applicants through the sworn affidavit by
Mr, Breytenbach did not
show that there had already been a decrease in the value of the
property since the operation of the guesthouse.
[31]
As far as the alleged consent granted by first Me. Marais and then
later Mr. Masisi is concerned, there appears to be a dispute
of fact.
In this regard Mr. Buys referred me to the principles stated in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
A at 634 to
635. Mr. Buys argued that if one should apply those principles to the
present matter, based on the allegations by the
Respondents, it
should be accepted that such consent had indeed been granted by one
or both of the persons referred to.
[32]
In
Room Hire Co. Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) Murray, AJP at 1162 said the following:
“
In as much as the
ascertainment of the true facts is effected by the trial judge, on
considerations not only of probability but
also of credibility of
witnesses giving evidence viva-voce, it has been emphasised
repeatedly that (except in interlocutory matters)
it is undesirable
to attempt to settle disputes of fact solely on probabilities
disclosed in contradictory affidavit, in disregard
of the additional
advantages of viva-voce evidence …”
[33]
In
Decor Paint v Plascon-Evans Paints
(supra) at 223 D
– E Flemming J said the following:
“
A respondent can therefore
avoid judgment against him without asking for the hearing of oral
evidence. The applicant, on the other
hand, can only succeed by
removing the obstacle created by the respondent’s evidence.
From the point of view of achieving
success in the application, it is
therefore incumbent upon the applicant to ask for the hearing of oral
evidence so as to enable
him to establish that his evidence and the
resulting probabilities should be acted upon.”
[34]
To date neither party has asked for the hearing of oral evidence.
[35]
Because of the existence of the dispute of facts and because of the
undesirability to make a finding based on the probabilities,
I am
unable to make a finding in this regard. On probabilities I am not
convinced that such consent had been granted by either
Me. Marais or
Mr. Masisi. The absence of any documentation showing such interim
consent does not favour the Respondents. Furthermore,
one would have
expected Respondent, and in particular Second Respondent in his
letter dated 22 February 2017 addressed to Applicants’
attorneys to refer to such interim consent, which was not done.
However, for the reasons set out hereunder, I do not find it
necessary
to make a finding in this regard.
[36]
Even if it is accepted that Me. Marais as well as Mr. Masisi did
grant permission to operate the guesthouse pending the outcome
of the
application by the Respondents, such informal authority cannot be the
authority by the Fourth Respondent as envisaged by
the relevant
ordinances and regulations in this regard. After the proper procedure
had been followed, and in particular after proper
notices have been
given to the property owners in the vicinity of the guesthouse, and
notices in the local Newspaper, only then
after proper consideration
may consent be granted for the special use as a guesthouse. Up until
that stage the guesthouse on the
property is being run illegally.
[37]
Mr. Buys in the last instance argued that whereas a criminal sanction
is provided for in the relevant legislation, the requirement
of an
alternative remedy in regards to an interdict as set out in
Setlogelo
v Setlogelo
1914 AD 221
was not met. In this regard
Mr. Buys referred me to the matter of
Food & Allied Workers
Union v Scania Delicatessens CCB
2001 (3) SA 613
SCR where it
was held that criminal prosecution under Section 53(1) of the
previous Labour Relations Act, 28 of 1956 was a competent
alternative
remedy to the relief applied for. Of importance is that in that the
Appellants therein brought an application to declare
that the First
Respondent was obliged to comply with the terms of an order granted
by the Industrial Court. The Court a quo held
that the High Court
does not have the power to make a comital order for contempt based
upon non-compliance with the judgment of
the Industrial Court. The
present matter is however distinguishable from the
Food &
Allied Workers Union
matter whereas the relevant legislation
and in particular Section 53(1) read as follows:
“
Any person who contravenes
or fails to comply with any …
order, condition of
any order, decision, the award or determination
by the
Industrial Court shall be guilty of an offence.” (My
emphasise).
[38]
As far as Section 53 referred to is concerned, it provided a criminal
sanction and therefore the Court held that it was not
competent to
give an order in regards to comital. This is not however, authority
for the submission that the availability of a
criminal sanction
provides an alternative remedy for purposes of an interdict.
Therefore there is no alternative remedy available
to the
Applicants. I am therefore satisfied that all the requirements
of an interdict had been met.
[39]
Mr. Rautenbach in opposition to the suspension of the interdict
against the Respondents, referred me to amongst others the
matters of
Lester v Ndlambe Municipality and Another
2015 (6) SA
283
SCA as well as
United Technical Equipment Co. (Pty) Ltd v
Johannesburg City Council
1987 (4) SA 343
(T). In the Lester-
matter Majiedt JA referred to the following obiter dicta of Harms J
(as he then was) in the
United Technical Equipment
matter in support of the contention that, where the breach of law
interdict is a breach of a statute, a stricter approach is adopted,
namely at p. 347 – F - H:
“
It follows form an analysis
of these cases that discretion can, if at all, only arise under
exceptional circumstances. Furthermore,
I am not aware of any
authority which would entitle the Court to suspend the operation of
the interdict where the wrong complaint
of amount so a crime.”
[40]
Majiedt JA, further confirmed Harms JA’s contention that there
is not a rule that a statutory right is stronger than
a common law
right. It simply means that where a statutory breach is visited with
criminal sanction, a Court is not entitled to
suspend the operation
of an interdict. In the
Lester-
matter, namely
contravention of the particular section of the National Building
Regulations and Building Standards Act, 103 of
1977, constitutes a
criminal offence with a penal sanction. Mr. Rautenbach referred
me in this regard to the
Free State Townships Ordinance No. 9
of 1969
and in particular Section 41 thereof in terms of
which contravention of certain sections as well as any regulation
under the Ordinance
is indeed met with a criminal sanction.
[41]
I am in agreement with Mr. Rautenbach that although the nuisance
created by the Respondents and in particular the guests visiting
the
guesthouse are denied by the Respondents, Respondents’ denial
of the nuisance does not detract from the continued illegality
of the
Respondents’ use of the property. Any informal consent granted
by either Me. Marais or Mr. Masisi could not have rendered
such
illegal activities legal. Suspension of an interdict which is granted
in favour of the Applicants is therefore not feasible
and can indeed
not be allowed.
[42]
It appears that there may however, be some medium to long-term
residents currently making use of the guesthouse. In order to
allow
such guests the opportunity to obtain alternative accommodation, I
deem it just and equitable that the interdict be suspended
for a
reasonable period of time.
[43]
As far as costs is concerned, there is no reason why the Respondent,
and in particular First and Second Respondent should not
bear the
costs of the application. As far as Third Respondent’s
costs are concerned whereas Third Respondent made use
of the same
attorney as well as counsel for the matter and therefor did not in
all likelihood incur any additional costs, no special
cost order will
be made in spite of it being held that the Third Respondent should
indeed not have been joined as a party to the
application.
In
the premises the following order is made:
ORDER
1.
The First as well as Second Respondents are interdicted from
using Erf [...], Bethlehem (Extension 43), district Bethlehem, held
in terms of Title Deed 24560/204, situated at [...] K. S.,
La
Provance, Bethlehem, for any purpose other than “dwelling
house/unit/and/or in conflict with the single residential zoning”
.
2.
The First and Second Respondents are interdicted from conducting any
business, office or accommodation facility other than “dwelling
house/unit” from Erf [...], Bethlehem situated at [...]
K. S.,
La Provance, Bethlehem whilst and until any application to amend the
land use of Erf [...], Bethlehem has been approved
by the
Fourth Respondent.
3.
The relief set out in paragraphs 1 and 2 above is suspended up until
15 September 2017.
4.
First and Second Respondents are to pay the costs of the application
jointly and severally, payment by the one to absolve the other.
_______________
J.J.F.
HEFER, AJ
On
behalf of the applicant:
Adv. J S Rautenbach
Symington & de Kok Attorneys
169B
Nelson Mandela Drive
BLOEMFONTEIN
On
behalf of the First, Second
and
Third Respondents:
Adv. J J Buys
J L Jordaan Attorneys
4 Brill Street
Westdene
BLOEMFONTEIN