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[2015] ZAGPPHC 199
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Randjesfontein Country Estates Limited and Others v Masoom Trading Solutions (Pty) Ltd and Others (43706/14) [2015] ZAGPPHC 199 (20 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:43706/14
DATE: 20 FEBRUARY
2015
In the matter
between:
RANDJESFONTEIN
COUNTRY ESTATES
LIMITED
.......................................................................................................................................
First
applicant
PETER
CLARK
........................................................................................................................
Second
applicant
JAMES
HARVEY
.......................................................................................................................
Third
applicant
BARRY
RICHARDSON
..........................................................................................................
Fourth
applicant
LOUIS VAN DER
MERWE
......................................................................................................
Fifth
applicant
and
MASOOM TRADING
SOLUTIONS (PTY)
LTD
..................................................................
First
respondent
FATHIMA
AMOD
...............................................................................................................
Second
respondent
THE CITY OF
JOHANNESBURG METROPOLITAN
MUNICIPALITY
.....................................................................................................................
Third
respondent
JUDGMENT
VAN DER WESTHUIZEN,
A J
1. This an
application for a declaratory and final prohibitory interdicting
relief prohibiting the first and second respondents
from continuing
conducting a business in contravention of the relevant town planning
scheme on portion 235 of the Farm Randjesfontein
405, Registration
Division JR, Province Gauteng (portion 235), together with additional
relief.
2.
It is common cause that the land in question, portion 235, is zoned
“
agricultural”
in
terms of the Halfway House & Clayville Town Planning Scheme
1976 Part 1 (the Town Planning Scheme).
3. The
Randjesfontein Country Estate was established during or about 1983,
and subsequently developed with the intention of creating
an
equestrian estate where people could own property and reside and
benefit from a country life style attributable to a pastoral,
country
setting. The Estate consists of 365 erven, comprising some 850
hectares of land, generally between one and two hectares
in extent
although some properties are considerably larger.
4. The Estate is an
approved access controlled area, having been approved by resolution
of the Midrand Town Council in 1999. The
perimeter of the Estate is
completely enclosed by a fence and security boom and manned huts are
situated at entrances/exits.
5. The applicants
fall into two categories: the first applicant is a nonprofit company
incorporated in terms of section 21 of the
Companies Act, 1973, and
is charged with the function of managing and administrating the
Estate. Property owners within the Estate
bind themselves
contractually to certain conditions and rules pertaining to the
ownership and use of their respective properties;
the second to fifth
applicants are residents who live in close proximity to portion 235.
6. Amongst its other
functions, the first applicant has established a set of policies and
rules, as authorised to do so in terms
of the Estates Articles of
Association, which property owners are required to abide by and to
that extent contractually bind themselves
thereto when acquiring
property within the Estate.
7. It is common
cause that the second respondent had signed a document entitled
Consent for Resale, which document is one of a number
that the first
applicant requires to be signed by new owners of properties within
the Estate.
8.
It is further common cause that the document, Consent for Resale,
contains reference
inter
alia
to
the following:
(a) Conditions
included in the Deed of Sale between the first Applicant’s
predecessor, Randjesfontein Developments (Proprietary)
Limited, and
the original purchaser;
(b) Conditions
contained in the respective Title Deeds of the properties;
(c) The Town
Planning Scheme;
(d) Restraints;
(e) Title
conditions;
(f) Randjesfontein
specifications relating to buildings, fencing and walling;
(g) Randjesfontein
Country Estates membership and levies.
9.
Included in a bundle of documents that are handed to new owners of
properties within the Estate, and which is also common cause
that
such were handed to the second respondent, are
inter
alia
documents
entitled respectively:
(a) Policies
& Implementation Procedures;
(b) Randjesfontein
Consent for Mortgage Bond;
(c) Building and
Land Use Requirements in Randjesfontein;
(d) Country Estates
Submission of Building Plans for Approval;
(e) Property
Inspection.
10. It is not
disputed that the aim of the aforementioned bundle of documents is to
preserve the country life style of a pastoral,
country setting.
11. The first
respondent, being a company duly registered and incorporated in
accordance with the laws of the Republic of South
Africa, is a
Clinical Research Organization and is the registered owner of portion
235, Randjesfontein, having taken transfer of
the property during
2013.
12. The second
respondent is the sole director and shareholder of the first
respondent. According to the company records, the second
respondent’s
residential address is registered as 17 Singer Street, Unit 4, Forest
Lea, Woodmead East, Sandton, 2128.
13. The third
respondent is a municipality established in accordance with section 2
of the terms of
Local Government: Municipal Systems Act, No. 32 of
2000
. The third respondent was joined by virtue of the interest that
it has in the present proceedings, although no relief is sought
against it.
14. The application,
and in particular the relief that is sought, is premised primarily
upon the first and second respondents’
use of the property
situated on portion 235. The use being the use of a place of
instruction as envisaged in the Town Planning
Scheme.
15. Applicants
alleged that the aforementioned use of portion 235 constitutes a
contravention of the Town Planning Scheme read with
the Town Planning
& Townships Ordinance 56 of 1986.
16. Considering the
provisions of the Town Planning Scheme that are relevant to the facts
of this matter, the following is relevant.
17.
Clause 2.18 defines a dwelling house meaning a
building
designed for and/or used as a residence by one family together with
such buildings as are reasonably accessory and/or necessary
to and
used in connection therewith”.
It follows that the
use of such building relates to residence and not business.
18.
The Town Planning Scheme in clause 16 provides for the purpose for
which buildings may be erected and used in respect of the
relevant
zoning of the property and refers in that regard to Table F in the
said scheme. It is provided that where property has
been zoned
“
agricultural”,
the
buildings erected thereon may in the normal course be erected and
used only for dwelling houses and agricultural buildings.
Table F
further provides that with the special consent of the local
authority, the buildings erected and used could then
inter
alia
be
used for places of instruction.
19. It is common
cause that the third respondent has not granted special consent as
intended in clause 16 read with Table F in respect
of portion 235.
20.
However, the Town Planning Scheme provides an exception to the
general prohibition of use of property zoned
“
agricultural’’
and
that exception is to be found in clause 20 thereof.
21. Clause 20 of the
Town Planning Scheme reads as follows:
“
Without
prejudice to any powers of the local authority derived from any law,
or to the remainder of the Scheme, nothing in the foregoing
provisions of this part of the Scheme shall be construed as
prohibiting or restricting or enabling the local authority to
prohibit
or restrict:
20.1 the letting,
subject to the by-laws relating to lodging and boarding houses, by
any occupant of a dwelling house or any part
of the house otherwise
than as a separate tenement;
20.2 the
occasional use of a place of public worship, place of instruction or
institution, as a place of amusement or social hall;
20.3 the
practice, subject to the compliance with the by-laws by any occupant
of a dwelling house or residential building of a profession
or
occupation, which does not involve either:
20.3.1 the use of
the building as an industrial building or noxious industrial
building; or
20.3.2 the public
display of goods whether in a window or otherwise;
20.3.3 the
exhibition of any notice or sign other than a notice or sign
ordinarily exhibited on a dwelling house to indicate the
name and
profession or occupation of the occupant; or
20.3.4 an
interference with the amenities of the neighbourhood. ”
22.
The
applicants further alleged that the first and second respondents, due
to the business that is being conducted on the premises,
are in
breach of the provisions of the Consent for Resale (which document
includes the Town Planning Scheme) signed by the second
respondent,
in that such conduct interferes with the peace and quiet of the
neighbourhood, has materially and adversely affected
the character of
the suburb (directly impacting on the residents in the area), created
an undue and untoward increase in traffic
(both as to motor vehicles
and persons entering and leaving the Estate), has made it more
difficult to monitor and control the
influx of traffic and people.
23. The defences
raised by the first and second respondents in their answering
affidavit were: a reliance on the provisions of clause
20 of the Town
Planning Scheme and specifically clause 20.3 thereof (i.e. a reliance
on the exception to the prohibited use); the
Consent for Resale
document is only of application when portion 235 is sold by
respondents; the first respondent is running a small
“home
business” and its activities do not disturb the amenity of the
suburb in any way; the first applicant is not
acting impartially
because other businesses are being conducted in the area by various
residents apparently with the blessing of
the first applicant and the
first and second respondents should also be so allowed.
24. The primary
defence by the first and second respondents was a reliance on the
exception provided in clause 20.3 of the Town
Planning Scheme. The
provisions of that clause are set out above. The defence being a
reliance on an exception, the first and second
respondents bear the
onus.
25.
In this regard, the defence was that in terms of clause 20.3 of the
Town Planning Scheme, the first and second respondents as
“occupants”
of the property were entitled to practise a profession or occupation,
contrary to the permitted use of
the relevant zoning (in this matter
that of
“
agriculture”),
provided
that such practise did not constitute an interference with the
amenities of the neighbourhood.
26. The word
“occupant” is not defined in the Town Planning Scheme,
however the word “occupier” is defined
as:
“
2.39
Occupier
'’
in
relation to any building, structure or land means and included any
person in actual occupation of or legally entitled to occupy
such
building, structure or land without regard to title under which he
occupies, or any person having the charge or management
thereof, and
includes the agent of any such person absent from the area, or whose
whereabouts is known. ”
This definition
merely creates “categories” of occupiers.
27.
The Town Planning Scheme is silent on the meaning to be
ascribed to the word “
occupy”
as
it appears in clause 20.3 and hence the word must be given its
ordinary grammatical meaning, purposively interpreted in the context
that it appears.
28.
In this regard, the word “
occupy”
is
defined in the Shorter Oxford English Dictionary, the two volume
edition, as:
“
4.
verb trans. Hold (a position or office): live in, tenant, (a place)”
29.
Applying the aforesaid definition of the Shorter Oxford English
Dictionary to the word “
occupy”
as
appearing in clause 20.3 in the context of clause 20 and interpreting
it purposively, imputes a condition of physical presence
that has
permanency as opposed to occasional. This is supported by the
condition imposed in clause 20.3.4 that the conduct permitted
does
not interfere with the amenities of the neighbourhood. In this regard
I find further support in the exception provided in
clause 20.2 of
the Town Planning Scheme that provides for the
“
occasional
use”
of
a place of public worship, place of instruction or institution, as a
place of amusement or social hall.
30. First
respondent, being the registered owner of the property, is not
required to occupy the property. The first respondent’s
ownership of the property does not constitute occupancy of the
property as intended in clause 20 of the Town Planning Scheme. There
is no physical presence. The first respondent primarily conducts a
business, it does not practise a profession or occupation as
contemplated in clause 20.3 of the Town Planning Scheme.
31.
Second respondent on her own version only occasionally stays over at
the property, her time, dictated by circumstances, being
spread among
three properties; portion 235, a property situated in Woodmead and
most weekends in a flat in Durban. It is clear
on second respondent’s
version, that her
“
occupancy”
of
portion 235 is infrequent, haphazard and occasional. The company
records of the first respondent stated her residential address
to be
in Woodmead.
32.
The first respondent is described by the second respondent as a
“
SETA
accredited training provider which operates under the name ‘Masoom
Training Solutions’. It is an exempted micro-enterprise
BBEEE
level 1 level 1 provider
(sic)
specialising
in e-learning programmes which provide distance learning.”
The
second respondent further stated that trainees are obliged to work
for eleven months and receive one month’s lectures,
however the
one month-lectures were spread over a year.
33. The second
respondent stated that the courses she conducted are done on behalf
of the first respondent. In that sense, the second
respondent is
merely an employee of the first respondent; second respondent is
merely the medium through which the first respondent
conducts its
business. The second respondent does not practise a profession or
occupation, but conducts the business of the first
respondent on its
behalf.
34.
As dealt with above, clause 20.3 permits the occupant of a dwelling
house or residential building to practise his or her profession
or
occupation subject to qualifications in contravention of the general
prohibition against such use of property zoned
“
agricultural”.
35. It is clear from
the second respondent that she does not practise her profession or
occupation on portion 235, but merely furthers
the first respondent’s
business.
36.It follows that
the second respondent’s infrequent and haphazard occupancy of
portion 235 does not fall under the exception
provided in clause 20.3
of the Town Planning Scheme.
37.
In the absence of special consent by the third respondent to use
portion 235 contrary to the use “
agricultural”,
the
said use by the first and second respondents of the property for a
place of instruction is unlawful.
38. There remains
the issue of the alleged breach of the Consent to Resale. It is
common cause that a contractual relationship exists
in that regard.
39. The first and
second respondents alleged that the contractual relationship in terms
of the Consent for Resale only applied when
the property is sold.
There is no merit in that defence. It is clear form the document that
the contractual relationship came into
operation on the date of
signing thereof by the second respondent and endures until the
property is re-sold in future.
40. The first and
second respondents are contractually bound to comply with the
obligations imposed by that document; use of the
property in
conformity with the Town Planning Scheme, submission of plans to
first applicant for approval, obtaining consent of
the first
applicant for building works prior to the commencement thereof, to
join as member of the first applicant, permit inspection
of the
property by the first applicant in respect of the plans submitted for
approval.
41.
The applicants alleged that the first and second respondents had
breached a number of the obligations (apart from the contravention
of
the permitted use dealt with above),
inter
alia
they
failed to submit building plans for building works undertaken on the
property and failure to permit the first applicant to
inspect the
building works that were undertaken.
42. Building
operations undertaken on the property were observed by some of the
applicants, the precise detail of which was not
possible to determine
and hence the first respondent attempted to inspect the property. The
second defendant states that the building
works that were undertaken
only comprised walling up of the garage door and aesthetic changes to
the interior of the garage for
the purpose of converting it into a
lecture room.
43. There is a
dispute as to the extent of the building works undertaken on the
property. The second respondent alleged that the
aforementioned
admitted building works did not require the submitting of building
plans for approval and that the inspector of
the third respondent had
inspected the building works and had stated that no building plans
were required. On the other hand the
applicants have merely stated
that building works had been undertaken and hence were entitled to
inspect the building works. It
alleged that the first applicant
derived that right from the Consent for Resale document. The latter
merely requires that building
plans were to be submitted for consent
prior to commencement with the building works. In their replying
affidavit in response to
the aforementioned statement by the second
respondent, the applicants submitted that the right to inspect
building works were ancillary
and necessary as part of the
enforcement of clause 4(c) of the Consent for Resale, the latter
relating to the submitting of building
plans.
44. It is trite that
where there is a dispute of fact that cannot be decided on the papers
before court, the version of the respondent
is to be accepted, unless
the applicant seeks an order for the referral of that dispute for the
hearing of oral evidence. The applicants
did not so apply.
Accordingly the applicants have not discharged their onus in this
regard.
45. It follows that
the applicants are not entitled to final relief in respect of the
inspection of the alleged building operations
undertaken on portion
235.
46. In the result,
the applicants are entitled to the relief relating to the
contravention of the Town Planning Scheme in respect
of the
unauthorised use of portion 235.
47. I grant the
following order:
(a) The conduct of
training seminars on portion 235 of the Farm Randjesfontein 405,
Registration Division JR, Province Gauteng,
(29 Willow Crescent,
Randjesfontein) by the first and second respondents is declared to be
in contravention of the Halfway House
& Clayville Town
Planning Scheme 1976 Part 1;
(b) The first and
second respondents are interdicted, restrained and prohibited from:
1.1 utilising the
property and improvements situated thereon in any way whatsoever as a
“place of instruction” as contemplated
and described in
paragraph 2.46 of the Halfway House & Clayville Town
Planning Scheme 1976 Part 1;
1.2 conducting
and/or holding and/or facilitating lectures and/or workshops and/or
classes and/or seminars on the aforesaid property
or in the
improvements situated thereon.
(c) The first and
second respondents are ordered to pay the costs of this application
jointly and severally, the one paying the
other to be absolved.
C J VAN DER
WESTHUIZEN
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION
On behalf of
Applicant: S Kuny
Instructed by:
Norton Lambrianos (SA) Inc
On behalf of
Respondents: S D Mitchell
Instructed by:
Kuilman Mundell & Arlow