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[2016] ZAGPPHC 534
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Magalies-Bronberg v City of Tshwane (86552/2014) [2016] ZAGPPHC 534 (9 March 2016)
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IN THE HIGH COURT
OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA
NOT REPORTABLE
CASE
NO: 86552/2016
Date:09 March2016
In the matter
between
MAGALIES-BRONBERG
PROPERTY - FIRST APPLICANT
OWNERS ASSOCIATION
(MBPA)
HENDRIK WILLEM
DUNSBERGEN SECOND APPLICANT
RICHARD WAGNER
THIRD
APPLICANT
AND
THE CITY OF TSHWANE
FIRST RESPONDENT
METROPOLITAN
MUNICIPALITY
IMVULA
ROAD AND CIVILS PTY LTD SECOND
RESPONDENT
JACQUES
PELSER THIRD
RESPONDENT
THE MEMBER OF THE
EXECUTIVE FOURTH RESPONDENT
COUNCIL OF THE
GAUTENG DEPARTMENT OF
AGRICULTURAL AND
RURAL DEVELOPMENT
J U D G M E N T
MALI
AJ:
[1] This application
concerns the unlawful and illegal land-use by the second and third
respondents within the jurisdiction of City
of Tshwane Metropolitan
Municipality. The applicants seek an interim order that the second
and third respondent immediately cease:
1.1 Using the property
of the third respondent to operate a commercial undertaking in
conflict with the provisions of the Revised
Pretoria Town- Planning
Scheme, 2014 as well as the relevant zoning scheme and the provisions
of the title deed of the property;
1.2 Erecting any
structures on the property of the third respondent without the
authorisation of the City of Tshwane Metropolitan
Municipality;
1.3 Storing or the
parking of any vehicles of the second respondent or third respondent
or such other vehicles used for commercial
purposes by the second or
third respondent on the property of the third respondent;
1.4
Erecting or
placing or storing of any shipping containers, building construction
material and/or building associated material on
the property of the
third respondent; and
1.5 That the second
and third respondent be directed to forthwith remove all vehicles
parked or stored on the property of the third
respondent and be
interdicted and restrained from exercising a listed activity in terms
of the
National Environmental Management Act, 1998
on the property of
the third respondent.
[2] The applicants
further seek the following orders:
2.1 an order to direct
the first respondent to investigate the alleged contraventions of the
second and third respondents in relation
to the property known as
[Portion 1.., Mooiplaas 3.. JR, C], held by Deed of Transfer
T27572/2014, and file a report with an affidavit,
with the Registrar
and the parties within 90 days from granting of this order indicating
the veracity of such alleged contraventions
found by such
investigation;
2.2 an order whereby
the fourth respondent is directed to investigate the alleged
contraventions of the provisions of the
National Environmental
Management Act, 1998
in respect of the property known as [Portion
1.., Mooiplaas 3… JR C], held by Deed of Transfer T27572/2014
and file a comprehensive
report with the Registrar and the Applicants
within 90 days from the granting of this order indicating the
veracity of such alleged
contraventions found by such investigation.
[3) The first
applicant is a voluntary incorporated association and duly
constituted as such with address at [Plot 2.., Mooiplaas,
Pretoria,
Gauteng]. The first applicant is a community based association
established to advance, promote and protect the general
interests and
other interests of its members. The first applicant's further
objectives are to represent and promote the interests
of its members
and the smallholding property owners in particular, relating but not
limited to, sustainable and affordable municipal
services and
property rates. The first applicant exist to also attend to
environmental issues and transgressions, development of
the area and
other common interests as may be determined from time to time by the
members.
[4] The second
applicant is an adult male businessman with residential address at
Plot 2.., Mooiplaas, Cullinan, Gauteng. The third
applicant is an
adult male businessman with residential address at [Plot 5..(formerly
Plot 140), Mooiplaas, Cullinan, Gauteng].
The second and third
applicants are also landowners in the direct vicinity of the property
which forms the subject of this application.
The third respondent is
the landowner of the property complained of and the director of the
second respondent.
[5] The first
respondent is a metropolitan municipality with legal capacity,.
established in terms of Notice 9600 of 2000 published
in terms of
section 12(1) of the Local Government Structures Act, 117 of 1998
with address at 11 Francis Baard Street, Pretoria,
Gauteng. The
second respondent is a company with registration number [M20…]
incorporated in terms of the Companies Act 71
of 1973 with its
registered address at [Ground Floor, 1.. Bedfordview Office Park,
Riley Road Bedfordview, Gauteng].
[6] The third
respondent is an adult male businessman with [identity number 74…]
and Director of the second respondent with
address for service at
Roestoff Kruse Attorneys, 17 Dely Road, Hazelwood, Pretoria Gauteng.
The fourth respondent is the member
of the Executive Council of
Gauteng Province who is accountable to the provincial legislature for
the Department of Agricultural
and Rural Development with address at
[ No 1.., Diagonal Street, Johannesburg, Gauteng]
[7] First and fourth
respondent do not oppose the application, as a result they have
agreed that the draft order between the parties
be made an order of
court.
[8]
I first had to deal with the striking out application by the second
and third respondent of the applicants replying affidavit.
The basis
for striking out is that the applicants did not establish a cause of
action in the founding affidavit. The applicants
created a new case
on the replying affidavit. They introduced a 2008 document linking to
the repealed scheme. Furthermore that
the town planning scheme was
not attached in the founding affidavit.
[9] Applicants state
that there is no basis to strike out the replying affidavit. The
matter sought to be struck is the information
that has been requested
by the respondents in terms of Rule 35 (1). In
Minister of Land
Affairs
and Agriculture v D&F Wevell Trust
[2008]
JOL 21213
(SCA);
2008 (2) SA 184
(SCA) at 200 D-E : it was stated;
"In motion
proceedings, the affidavits constitute both
the
pleadings and
the evidence: Transnet Ltd v Rubenstein, and the issues and averments
in support of the parties' cases should appear clearly
therefrom..... Trial
by ambush
cannot
be
permitted
".
My view is that Rule
35 (1) has no bearing to the replying affidavit. It cannot be
overemphasised that all the allegations on which
the applicant relies
must
•
be
in his founding affidavit. The applicant cannot adduce supporting
facts in a replying affidavit. This rule is not absolute because
the
court has a discretion in certain instances, to allow new material in
a replying affidavit. This is subject to
proviso
that
the respondent should be given an opportunity to deal with it in a
second set of answering. In the present matter the applicants
have,
not placed any circumstances before me for consideration.
[10]
In
Sheperd v Tuckers Land and Development Corporation (Pty)
Ltd
1978 (1) SA 173
(>/1/)
at 177 G-H the court stated:
"it is founded
on the trite principle of our law of civil procedure that all
the essential
averments
must
appear
in
the
founding
affidavits
or
the
Courts
will not
allow
an
applicant
to
supplement
his
case
in
his
replying
affidavits
and
will order
any
matter
appearing
therein
which
should
have
been
in
the
founding affidavit to be struck out."
[11] In
casu
the
complaint is that the applicants did not attach the 2008 Tshwane Town
Planning Scheme forming the basis of their case. In support
of the
applicants' contention that the property is zoned for agricultural
purposes they rely on the approval for the substitution
of the Peri-
Urban Areas Town-Planning Scheme, 1975 with the Tshwane Town Planning
Scheme, 2008. In this regard the applicants
in the founding papers
attached Annexures "S" and "T". These are the
first page of the approved resolution
as well as the decision by the
first respondent that respectively. These documents serve as
confirmation that Tshwane Town Planning
Scheme, 2008 be promulgated
in accordance with the policies of the first respondent.
[12] The applicants
argue that on 17 September 2014 the aforementioned substitution and
incorporation was promulgated by publication
in the Provincial
Gazette no. 258 of 17 September 2014 thereby incorporating the
property into the Tshwane Town Planning Scheme,
2008 ( Revised 2014).
The applicants further attached the zoning certificate marked
annexure "V". The zoning certificate
allows erection of
buildings in the property in question for Agriculture Buildings and
Dwelling- houses. The final note on the
zoning certificate reads:
"the above
zoning
information
must
be
read in conjuction
with the relevant
Annexure,
if
any,
and
the
rest
of
the
Clauses
of
the
Peri
-
Urban
Areas Town Planning
Scheme, 1975. Where an annexure
does
not
specify
or
stipulate
a
land
use or development
control
(for eg.
Height,
F.S.R.
etc)
the
stipulations
of
the
said
Scheme
clauses
and
the
above Zoning Certificate shall prevail."
[13] Second and third
respondents oppose the relief on basis that the applicants found
their application on the alleged contravention
of the zoning
certificate in terms of the Peri - Urban Town- Planning Scheme, 1975
applicable to the property; that the applicants
failed to identify
the relevant applicable town-planning scheme upon which their case is
founded. The zoning certificate relied
upon by the applicants is
invalid, in view of the fact that the 1975 Peri -Urban Scheme, in
terms of which it was issued, had been
repealed, thus the applicants
failed to make out a case based on a zoning contravention; and that
the applicants failed to attach
a copy of the relevant town- planning
scheme relied upon in the founding affidavit. The scheme relied upon
is the 2008 Tshwane
Town Planning Scheme.
[14] Having regard to
the above the replying affidavit of the applicants in so far as the
paragraphs introducing the 2008 Tshwane
Town Planning Scheme is
struck out.
MAIN ISSUE
[15] The issue to be
determined is whether the applicants are entitled to the relief of
the interim interdict.
[16] The rights sought
be protected by the applicants are the illegal use of land for
comm1:1rcial purposes including the erection
of illegal building
structures. According to the applicants the property which is the
subject of complaint is zoned exclusively
for agricultural purposes.
The complaint is that the third respondent utilises the property for
commercial purposes in the following'
manner:
16.1 the illegal
storage of shipping containers on agricultural property;
16.2 the illegal
bringing upon and storage of equipment and extra heavy duty vehicles
on the agricultural property for commercial
purposes;
16.3 the illegal
conducting of commercial business and storage of goods on property
zoned exclusively for agricultural activity;
16.4 the illegal
removal of trees and shrubs;
[17] The applicants
further stated that despite various engagements with the third
respondents he does not desist from the alleged
illegal activities.
In support of the contention that the property is zoned for
agricultural purposes the applicants rely on the
approval for the
substitution of the Peri- Urban Areas Town- Planning Scheme, 1975
with the Tshwane Town Planning Scheme, 2008.
[18] As indicated
paragraph above the second and third respondents oppose the interim
interdict on basis that the rights sought
be protected by the
applicants are not founded. The applicants failed to identify the
relevant applicable town-planning scheme
upon which their case is
founded, thus they have not established any prima facie right.
APPLICABLE LAW
[19] In
Webster v
Mitchell
1948 [1] SA 1186 (W) at 1189 the court stated:
'In the grant of a
temporary interdict, apart from prejudice involved,
the
first
question
for
the
Court in
my
view
is
whether
,
if
interim
protection
is
given,
the
applicant could ever obtain the
rights he seeks
to
protect.
Prima facie that
has
to
be
shown. The
use
of
the
phrase
''prima
facie
established
though
open
to
some
doubt'
indicates, I
think,
that
more
is
required than
merely
look at
the
allegations of
the
applicant, but
something
short
of
a
weighing
up
of
the
probabilities of
conflicting
versions
is required.
The proper
manner
of approach
I consider is to take
facts
as
set
out
by
the
applicant, together
with
any
facts
set
out
by
the
respondent, which
the
applicant
cannot
dispute,
and
to
consider
whether
having
regard
to
the
inherent
probabilities,
the
applicant
could
on
those
facts
obtain final relief at
a
trial.
The
facts
set up
in contradiction by
respondent
should
then
be
considered.
If
serious
doubt
is
thrown
on
the
case
of
applicant
he
could
not
succeed
in
obtaining
temporary
relief,
for
his
right, prima
facie
established,
may
only be open
to
"some
doubt'.
But
if there is mere
contradiction, or unconvincing explanation, the matter should be left
for trial and the right protected in the
meanwhile, subject of course
to the respective prejudice in the grant or refusal of interim
relief. Although the grant of
a
temporary interdict
interferes with
a
right which
is apparently
possessed by the respondent is protected because, although the
applicant sets up
a
case which prima facie establishes that
the respondent has not the right apparently exercised by him,
the test whether or not the temporary relief is to be granted is the
harm which will be
done.
And
in
a
proper case
it
might
well
be
that
no
relief
would
be
granted
to
the
applicant except
on
conditions which
would
compensate
the
respondent
for
interference
with his
right
,
should
the
applicant
fail
to
show at the trial that he was entitled to
interfere.
'
(20]
In
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son ( SA) ( Pty)
Ltd (1995]
1 All SA 414
(T) 417-418;
1995 (1) SA 725
(T) at 729 I-
730 G , it was stated:
"The applicant
seeks interim relief. The applicant must
therefore
establish:
(1)
a
clear right or, if not clear that it has
a
prima
facie right;
(2) that
there
is
a
we/I-grounded
apprehension
of
irreparable
harm
if
the interim
relief
is not granted
and the ultimate
relief
(by way
of the summons issued) is eventually
granted;
(3) that the
balance of convenience favours the grant of an
interim
interdict; and
(4) that
the
applicant
has
no
other
satisfactory
remedy.
( L
F
Boshoff
Investments
( Piy)
Ltd
v
Cape
Town
Municipality;
Cape
Town Municipality
v L
F Boshoff
Investments
(
Piy) Ltd
1969 (2)
SA
256
( C) at 267 B-
E.)
[21] In
Beecham
Group Ltd v B-M Group (Pty) Ltd
1977 (1) SA 50
(T) at 55 B-E) the
court said with regard to the various factors, which must be
considered:
"I consider
that both the question of the applicant's prospects
of
success
in
the
action and
the
question whether
he
would
be
adequately
compensated by an
award of
damages
at
the
trial
are
factors
which should be taken into account
as
part
of
a
general
discretion
to be exercised by the Court
in considering whether to
grant
or refuse
a
temporary
interdict. Those
two
elements
should
not
be considered
separately
or in isolation,
but
as
part
of the
discretionary function of the Court which includes
a
consideration of
the balance
of
convenience
and
the respective prejudice
which
would
be suffered
by
each
party
as
a
result of the
grant or
refusal of
a
temporary interdict.
"
[22]
In Olympic Passenger Services (Pty) Ltd v Ramlagan
1957 (2) SA
382
(D)
at 383 C-D
the court stated that:
"
It thus
appears
that
where the applicant's right is clear and the
other requisites of an interdict
are
present no difficulty
presents itself about granting an interim interdict. Where, however,
the applicant's prospects of success
are
nil, obviously the
Court will refuse
an interdict".
[23] The facts as set
out by the applicant are that the respondents by bringing bulldozers,
grass cutting are in clear contravention
of zoning provisions as
provided for in the certificate. The respondents do no dispute some
of the facts; however they maintain
that they are not in
contravention of any law as the property in question is not zoned for
Agricultural purposes. The property
is zoned by the scheme which the
applicants failed to produce. In support of his argument Counsel for
the respondents referred
me to the case of
Daniel Jacobus
Lukas
Jacobs
and
another
[unreported
judgment]
a judgment of Yekiso J
delivered on 14 November 2014 in the Western Cape Division where at
paragraph 17 and 18 he held that:
"At the
hearing of the rule nisi Transand produced an unreported
judgment of
a
Full
Bench
of
this
Court in
the
form
of
Frenvest
cc
&
v
Smith
&others
Appeal
Number
A476196
handed
down
on
20
February 1997.
The existence
of
this
authority was
not
known
to
the
applicants
or
their
legal
advisors.........On the basis of that authority the Full Bench
of this Division held that
a
zoning certificate issued by
a
municipality such as the one issued by the Mossel Bay Municipality
was not sufficient proof of
the zoning of
a
property, and that evidence of
a
decision by the
relevant council in respect of
the
zoning
of the
property concerned was
required."
[24) The applicants'
counter .argument to the above is that Town Planning Scheme is a
legislative document which cannot be attached
to the founding
affidavit. In my view without having to categorise a Town Planning
Scheme; the importance of same cannot be over
emphasised in that the
applicants' case is largely found in the references made in 2008
scheme substituting the 1975 Peri-Urban
Scheme. The contention that
it is not necessary to attach the scheme is unacceptable. See: in
this regard
Muangisa
Ntangu-Reare
v
City of Johannesburg
[unreported judgement] a judgment of
Masipa J delivered on 15 November 2012 in Gauteng Local division
where she held that:
"A town
planning scheme is
a
unique piece of legislative arrangement
in terms whereof each erf within the geographical area covered by
a
scheme has
a
specific zoning attached to it, which
zoning permits
only
certain uses
specified in the
scheme itself.
No provision is
made in
a
scheme for "grey areas".
An
occupier of an owner
of an erf either
uses the property
for the
purposes
permitted
by
the scheme or he does n
ot'. (my
emphasis)"
[25) I am fortified by
the ratio in the above case that a town planning scheme is a document
of significance in establishing the
use of property. A zoning
certificate cannot override the provisions of the Town Planning
Scheme.Thus prima facie right cannot
be established through the
certificate.
[26) Furthermore the
applicants have more than enough satisfactory remedies
inter alia
in that the first and fourth respondents have been ordered to
investigate the respondents. The said respondents by virtue of their
authority are definitely clothed with powers of redress in the event
the respondents are found to have contravened the law. In
the
exercise of my discretion I do not see how at a trial the applicants
could ever obtain the rights they seek to protect, relying
on the
zoning certificate alone. In the result the application must fail.
ORDER
[27) Application is
dismissed with costs. Applicants are ordered to pay second and third
respondents costs.
[28) Draft order
marked "X" is made an order of court.
MALI
AJ
JUDGE
OF THE GAUTENG DIVISION HIGH COURT
APPEARA
NCES
FOR
THE APPLICANTS :ADV J A Venter
Instructed
by: AB Lowe Attorneys
For first and fourth
respondent : Adv Manala
Instructed by: State
Attorney
For Second and third
respondent:Adv. A Liversage
Instructed by:
Roestoff & Kruse
Date
of hearing: 12 October 2015
Date
handed down: 09 March 2016