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[2011] ZAKZDHC 34
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Kwadukuza Municipality v Govender (13941/2010) [2011] ZAKZDHC 34 (22 July 2011)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO : 13941/2010
In
the matter between:
KWADUKUZA
MUNICIPALITY
…...............................................
Applicant
vs
DEOSHINEE
GOVENDER
….......................................................
Respondent
___________________________________________________________
J U D G M E N T
K
PILLAY J
[1] The Applicant KwaDukuza Municipality, seeks an
interim interdict in the following terms against the Respondent,
Deoshinee Govender.
“
2.
that the Respondent is hereby interdicted and
restrained from operating a night club or any place of public
amusement from the
premises known as Erf 6 Shaka’s Kraal or 57
Main Road, Shaka’s Kraal until or unless:
he has obtained a written special consent to do so
in accordance with the provisions of the Shaka’s Kraal Town
Planning
Scheme and the KwaZulu-Natal Planning and Development Act
No 6 of 2008; and
he has obtained a written licence to do so from the
Applicant in terms of Section 2 of Business Act No 71 of 1991;
that the Respondent is interdicted and restrained
from causing or allowing the use of any building on the premises
known as Erf
6 Shaka’s Kraal or 57 Main Road, Shaka’s
Kraal until or unless such building has been constructed in
accordance with
plans approved by the Applicant in terms of the
National Building Regulations and Building Standards Act No. 103 of
1997 and
a certificate of occupancy in terms of Section 14 thereof
has been issued;
that the Respondent is to pay the costs of this
application on the attorney and client scale;
further and/or alternative relief.
That paragraphs 2(a) and (b) above will operate as
interim order, with immediate effect, pending the return day hereof.”
[2] It has been submitted that urgent relief was no
longer persisted with.
[3] This case essentially turns on whether a restaurant
licence permits dancing and therefore does not fall foul of the
provisions
of the Shakaskraal Town Planning Scheme (the Scheme) or
the Businesses Act 71 of 1994 (the Business Act). It is common cause
that
the Respondent has a licence to operate a restaurant and that
dancing is allowed on Friday and Saturday nights. It is also not in
dispute that the Applicant refers to his business as Doeshinees Nite
Club and that he does not have a licence to operate a nightclub.
[4] The Applicants case is that the Respondent, conducts
business from premises known as Lot 6, Shaka’s Kraal, which
property
he claims to own. On 4 August 2009 the Applicant caused a
contravention notice in terms of s 18 of the KwaZulu-Natal Planning
and
Development Act 6 of 2008 to be served on the Respondent. The
reason for the notice was that the following illegal activities were
being carried out on the property:
the business of a night club; and
the erection of buildings without approved building
plans.
It emerged however that buildings were in fact approved
although there is some controversy about how they came to be so
approved.
For the purposes of this dispute I consider that issue
irrelevant.
On 7 November 2009, the Applicant lodged a “
special
consent application”
to use the aforesaid property as a
place of public amusement. In his memorandum in support of the
special consent application the
Respondent avers that he is currently
using the building as a dance hall. The application for special
consent was refused.
[5] On 20 August 2009 a prohibition order was served on
the Respondent. The Respondent was ordered to discontinue the illegal
activities
being carried out on the property. Thereafter there were
numerous correspondence between the attorneys representing both
parties.
There was no settlement and hence this application ensued.
The application was refused.
[6] In addition, it is submitted that the Respondent is
using the building in question in a manner contrary to the approved
plans,
as the approved plan does not in any way make provision for a
dance floor or propose that any part of the building be used for
dancing.
[7] It is not in dispute that a Town Planning Scheme in
Course of Preparation as contemplated in chapter IV of the Town
Planning
Ordinance No 27 of 1949, applies in respect of the property
and a scheme as defined in Section 1 of the KwaZulu-Natal Planning
and Development Act No 6 of 2008 (“PDA”) continues to
apply.
[8] In terms of the aforegoing the property is zoned
“
commercial”.
This means that such property’s
use is prescribed in terms of “
table C : use zones”
to the scheme.
[9] Buildings or land on property zoned commercial may
therefore not be used as a place of public amusement unless special
consent
has been obtained.
[10] The Applicant submits that a place of public
amusement is a specifically defined used and is distinct from any of
the freely
permitted uses of property zoned commercial. Put
differently, the scheme prohibits the use of property zoned
commercial for a purpose
which falls within the definition of place
of public amusement unless special consent therefor has been granted.
[11] The Applicant contends that what is commonly
referred to as a ‘nightclub’, or ‘dance hall’,
falls squarely
within the definition of place of public amusement.
[12] Further, that Section 2(3) of the Business Act No
71 of 1991 (“the Business Act”) provides that no person
may carry
on business in connection with,
inter alia,
the sale
or supply of entertainment facilities without a business licence. No
such licence was applied for or issued to the Respondent.
[14] The Respondent on the other hand contends that he
has the necessary license to trade as a restaurant. He did submit
plans for
alterations and additions to the property to accommodate a
nightclub. He applied, for special consent to operate a place of
public
amusement on the advice of an employee of the Applicant. This
was rejected.
[15] On instructions of another employee he did not
appeal the refusal, as he was informed that the by-laws would be
amended and
he would no longer require special consent to operate his
business.
[16] He contends that the Shakaskraal Town Planning
Scheme defines a restaurant as “
a building or portion of a
building used primarily for the preparation and sale of food,
confectionary and beverages for consumption
on the premises”.
[17] He operates his, establishment within the
definition of ‘restaurant’ with one addition, dancing on
Friday and Saturday
nights. According to him, the scheme does not
prohibit dancing in restaurants.
[18] In reply the Applicant attaches various newspaper
advertisements which advertise the Respondents business as a
nightclub providing
music and dancing on Friday and Saturday nights,
at a specified fee. No reference therein is made to a restaurant.
[19] There is no dispute that the Respondent has a valid
restaurant licence and that on his version on Friday and Saturday
nights
he runs a nightclub, called Doeshinees Nite Club, which allows
dancing. It is also common cause that the Respondent does not have
a
licence to operate a nightclub.
[21] The issues for consideration herein therefore are
whether the Respondent’s business amounts to:
a place of public amusement in terms of the Shakaskraal
Town Planning Scheme (‘the Scheme’) or
the sale or supply of entertainment facilities in terms
of the Businesses Act 71 of 1991 (‘the
Businesses Act&rsquo
;).
[29] The purpose for a zoning scheme
was set out succinctly in
Chapman’s
Peak Hotel (Pty) Ltd & Another v Jab & Annalene Restaurants
CC t/a O’Hagans
1
at para 12 as follows:
“
[T]he general purpose of a
zoning scheme is to determine use rights and over the utilisation of
land in the area of jurisdiction
of a local authority. The purpose of
zoning and its concomitant restriction on the use rights and over the
utilisation of land
in the area of jurisdiction of a local authority.
The purpose of zoning and its concomitant restriction of the use
rights attaching
to land is to provide for the orderly, harmonious
and effective development of the affected area. It is the duty of the
local authority
to comply and enforce compliance with, inter alia,
the provisions of the Ordinance and the zoning scheme. A zoning
scheme is promulgated
in the interests of the inhabitants of an area.
It is legislative in character and is binding not only on owners and
occupiers
of land subject to the scheme, but also on the
administering local authority.”
[22] According to the scheme the property is zoned as
commercial and may not be used as a ‘place of public amusement’
unless special consent has been obtained. Examples for which the
property may be used include that of a commercial workshop, shop
and
restaurant.
The Respondent’s interpretation of the definition
of the scheme relies, it seems, on the linguistic definition of
“dance
hall” contained in the Concise Oxford English
Dictionary, which refers to dance hall as “a large public hall
or building
where people pay to enter and dance. The Respondent
contends that this is not the type of business he is operating.
As correctly submitted on an interpretative level the
Respondent’s focus on the word “dance hall” and his
reliance
on a single definition of those words are indeed incorrect.
[23] The scheme defines a ‘place of public
amusement’ as a building or land used for public entertainment
and includes
a theatre, cinema, music hall, concert hall, amusement
arcade, dance hall, skating rink, race tracks, sports area,
exhibition hall,
billiards room and fun fair.
[24] There is however no definition of ‘dance
hall’ in the scheme. The Shorter Oxford English Dictionary
defines ‘dance
hall’ as a place where public dances are
held
.
‘
Websters Third New
International Dictionary (1993) defines a ‘dance hall’ as
a ‘large room set aside or suitable
for dances, a public hall
offering facilities for dancing’.
Online
2
dictionaries define a dance hall as a
‘special building or large room for dancing in’ and ‘a
building or part
of a building with facilities for dancing’.
The Applicant submits, correctly in my view, that this definition
most reasonably
accords with the meaning which should be attributed
to the words in the Scheme.
[27] In
Rex
v Dracoulis and Others
3
it was alleged that the accused had
on a Sunday wrongfully and unlawfully kept open to the public a place
of public amusement or
entertainment for the purpose of dancing. On
Saturday nights patrons, with the permission of the accused, pushed
the tables aside
and danced to the orchestra provided. On several
Saturday nights dancing had continued to 3 a.m. of the following
morning. The
accused having been convicted, in an appeal,
Van
Winsen AJ
held that
the appellants had kept open a place of public amusement for the
purpose of dancing. The following was stated
4
:
“
The question is whether
regard being had to this evidence the Crown has established that the
accused kept open a place of public
amusement for the purpose of
dancing. In my view this evidence does establish the charge as laid.
I am quite prepared to accept,
as contended by Mr Kellaway, who
appeared for the appellants, that the accused were carrying on a
restaurant in the premises. I
can even go further and say that this
was without doubt the principal business that the accused were
carrying on in the premises
at Ebenezer Road. Non constat that they
do not also keep open a public place of amusement for the purpose of
dancing.”
[28] The Judge continued at:
5
“
It seems to me, therefore,
that if the proprietors of a restaurant provide an orchestra to which
the patrons can dance and they
on several occasions allowed their
patrons to use their floor for the purpose of dancing, it is very
difficult to escape the conclusion
that they are keeping open a
public amusement for the purpose of dancing. Mr Kellaway did not
contend that allowing the public
to dance to music did not constitute
a form of public amusement. Even if the dancing was of the nature
alleged by him, namely,
that couples danced in one spot, once must
assume that at any rate the couples concerned derived some amusement
from their exercise.”
[30] I accordingly conclude that a restaurant where
dancing takes place regularly as does the Respondent, is a place of
public amusement,
as referred to in the Scheme. Without special
consent, which it is common cause that the Respondent does not have,
he acts in contravention
of the Scheme by continuing to operate as
night club.
[31] Mr Seery who appeared for the Respondent, argued
that, the scheme, in its definition of restaurant, does not prohibit
or exclude
dancing. This argument cannot be sustained. If it were the
case then there would be no need for nightclub licences or need for
special consent to run a place of public amusement. Anyone with a
restaurant licence would simply be permitted to allow dancing
at any
time.
[32] Section 2 (3)(a) of
Businesses Act 71 of 1991
provides:
“
No person shall, with
effect from the date specified in a notice under subsection (1) in
respect of a specific licensing authority
carry on any business in
the area of that licensing authority.
(9) Unless, in the case of a business referred to in
item 1(1) or 2 of Schedule, he is the holder of an apposite licence
issued
to him by the licensing authority in respect of the business
premises concerned.
Item 2 of the aforesaid Act deals with the provision
of certain types of health facilities or entertainment. Item 2(f)
refers to
“keeping or conduction a nightclub or discotheque”
………
[33] The parties have argued the matter on a full set of
papers. Thus, if the Applicant has succeeded in making out a case,
for
final relief, there is no reason why this Court should not grant
such final relief.
[34] It is trite that the requisites for the right to
claim a final interdict are:
(a) a clear right;
(b) an injury actually committed or reasonably
apprehended; and
(c) the absence of similar protection by any other
ordinary remedy.
[35] As correctly submitted a local authority is
entitled to an interdict to curtail an infringement in respect of
which it is the
enforcement authority. The Applicant’s ‘clear
right’ flows from its portion as representative and guardian of
its citizens.
See
Tzaneen
Local Transitional Council v Louwet Uxor and Another
6
If the municipality concerned were unable, in the
interests of public safety, to regulate this type of industry within
its jurisdiction,
its power to comply with its statutory obligations
would be seriously undermined. It would be consequently more
difficult to prevent
a similar tragedy to the one that befell the
well=known Throb Nightclub, if it were unable to regulate the
businesses that fell
within its jurisdiction.
[38] In my view there is no alternative remedy available
to the Applicant.
In the circumstances I make the following order:
(a) that the Respondent is hereby interdicted and
restrained from operating a night club or any place of public
amusement from the
premises known as Erf 6 Shaka’s Kraal or 57
Main Road, Shaka’s Kraal until or unless:
he has obtained a written special consent to do so
in accordance with the provisions of the Shaka’s Kraal Town
Planning
Scheme and the KwaZulu-Natal Planning and Development Act
No 6 of 2008; and
he has obtained a written licence to do so from the
Applicant in terms of Section 2 of Business Act No 71 of 1991;
(b) that the Respondent is interdicted and restrained
from causing or allowing the use of any building on the premises
known as
Erf 6 Shaka’s Kraal or 57 Main Road, Shaka’s
Kraal until or unless such building has been constructed in
accordance
with plans approved by the Applicant in terms of the
National Building Regulations and Building Standards Act No. 103 of
1997 and
a certificate of occupancy in terms of Section 14 thereof
has been issued;
(c) that the Respondent is to pay the costs of this
application.
_____________________
K PILLAY J
Date of Judgment: 22 July 2011
Counsel for Applicant:
Advocate G D Goddard
Instructed by : SHEPSTONE & WYLIE
Applicant’s Attorneys
24 Richefond Circle
Ridgeside Office Park
Umhlanga Rocks
c/o 35 Samora Machel Streets
(formerly Aliwal Street)
DURBAN
Counsel for Respondent :
Advocate T E Serry
Instructed By: RAVIN SINGH, ASHEENA SINGH & COMPANY
Respondent’s Attorneys
c/o Vinay Yetwaru
Suite 1301, 13
th
Floor
Denor House
Cnr Joe Slovo & Anton Lembe Streets
DURBAN
1
[2001]
4 All SA 415
(C)
2
http://www.thefreedictionary.com/dancehall;
http:/dictionary.cambridge.org/dictionary/british/dance-hall;
3
1951(3)
SA 751 (C);
4
Supra
754 C-D
5
755
E-G
6
1996(2)
SA 860 @ 831 I