Club Twelve v Rand Water Board; Rand Water Board v Johannes and Another (141/2003) [2005] ZAFSHC 30 (3 March 2005)

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[2005] ZAFSHC 30
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Club Twelve v Rand Water Board; Rand Water Board v Johannes and Another (141/2003) [2005] ZAFSHC 30 (3 March 2005)

IN THE SUPREME
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No: 141/2003
In
the matter between:
CLUB
TWELVE
Excipient
and
RAND
WATER BOARD
Respondent
INRE
RAND
WATER BOARD
Plaintiff
and
BURGER
IZAK JOHANNES
First
Defendant
CLUB
TWELVE (aka KLUB 12)
Second Defendant
CORAM:
KRUGER
J
JUDGMENT:
KRUGER
J
HEARD ON:
26
NOVEMBER 2004
DELIVERED ON:
3
MARCH 2005
[1] Second defendant
excepts to plaintiff’s Particulars of Claim as lacking averments
to sustain a cause of action. Second defendant
says that plaintiff
makes no allegation which entitles it to any rights in respect of
the first defendant’s land.
[2] Second defendant says
that plaintiff has no power to order it to demolish the structures
mentioned in prayer 1 of the combined
summons. Second defendant
points out in the exception that plaintiff has to rely on clause 2.2
of Annexure “C” of the structure
plan, which provides as
follows:
“Except
with the written consent of the Rand Water
Board, no habitable
buildings or structures, toilets,
French drains, conservancy or
septic tanks, sewage
pumping installations or sewage works shall
be
permitted below the flood control line, as defined.”
[3] Second defendant’s
case is that on a proper interpretation of Annexure “C”, clause
2.2 therereof purports to forbid a decision
authorising the
construction of such structures by an authorising authority,
alternatively, clause 2.2 is
ultra
vires
its empowering statute referred to below.
In the premises, second
defendant says, it is the permissions foreseen in Section 6A(12) of
the 1967 Act and in Section 27 of the
1991 Act, which clause 2.2 of
Annexure “C”, the guide plan seeks to prohibit.
[4] In the exception the
following is stated:
“1.11 Plaintiff
has not alleged that:
First and/or Second Defendants are
functionaries who can either grant or refuse and/or permit the
actions foreseen in Section
6A(12) of the 1967 Act and Section 27
of the 1991 Act;
Either First or Second Defendant
has or is using the land either:
“
for
a purpose other than for the purpose for which it is zoned in
terms of a town planning scheme binding or becoming binding
in
that area or for a purpose other than a purpose for which it was
being used immediately prior to that date.” (1967 Act);
or
“
any land in the area to which
the regional structure plan or the urban structure plan, as the
case may be, applies for a purpose
other than the purpose for
which it-
was being used immediately before
that date (commencement of a regional structure plan); or
is zoned in terms of a town planning
scheme which is or may become binding in that area.”
(1991
Act).
Plaintiff makes no allegation that
it is a member of a class of person whose interests are sought to
be protected by clause 2.2
of the guide plan and/or either the 1967
Act or the 1991 Act;
Plaintiff makes no allegation that
it has allegedly suffered special damages as a result of the
alleged actions of First Defendant;
Plaintiff makes no allegations of
any actions by either the First and/or Second Defendant which is
contrary to the provisions
of the regional structure plan.
In the premises, Plaintiff’s
Particulars of Claim do not disclose a cause of action.”
SUBMISSIONS BY
COUNSEL FOR EXCIPIENT
[5] Counsel for excipient
submits that for subordinate legislation, such as the Guide
Plan/Structure Plan, to legitimately grant a
right to claim
demolition, the enabling statutory provisions (the 1967 Act and/or
the 1991 Act) have to expressly state that a Plaintiff
is entitled to
claim a demolition order, with reference to
VAN
STADEN v PRETORIA CITY COUNCIL
1950 (4) SA 365
(T) at 368-369. The power to demand demolition is a
drastic one and accordingly, the legislative enactment upon which a
Plaintiff
relies must expressly make provision for such a power (
VAN
STADEN v PRETORIA CITY COUNCIL (supra)
,
368A). The Plaintiff does not allege any form of common law right to
entitle it to a demolition order, such as contract and/or
nuisance
and/or encroachment.
[6] Counsel for excipient
points out that in
JOHANNESBURG
CONSOLIDATED INVESTMENT CO LTD v MITCHMOR INVESTMENTS (PTY) LTD AND
ANOTHER
1971 (2) SA 397
(W) it was held (at 410 D - E) that a Plaintiff must
plead the right from which it claims its entitlement to a demolition
order.
He says that Plaintiff has made no allegation as to the
origin of its right to demolish either in common law due to
encroachment
and/or nuisance or stemming from a particular by-law.
In the premises, the mere absence of approval, even if such approval
was required,
does not entitle the Applicant
per
se
to a
demolition order, such as claimed. Counsel says in the absence of an
allegation of an empowering statutory provision or an
allegation
which entitles the Plaintiff in terms of the common law to claim
demolition, the Particulars of Claim are expiable and
should be
struck out. The
Mitchmor
-case
dealt with further particulars, and is not in point.
[7] Counsel for excipient
says that the Guide Plan/Structure Plan obtains its status and
purpose from the 1967 Act, and later the
1991 Act. He says in
accordance with Section 6A of the 1967 Act, prior to its repeal,
Guide Plan Committees were set up to compile
draft plans for the
future “special development of the area defined”. Counsel
stressed that the purpose of a Guide Plan is set
out in Section
6A(1)(b) of the 1967 Act, which determines as follows:
“
Such
plan
can
determine that land may be utilised for a specific purpose only
or, with the consent of the
Minister or Administrator or a
specified authority, according to the provisions of the plan,
also
for such other purposes for
which
provision is made by the plan
.”
(Counsel’s underlining).
[8] Counsel submitted
that, in terms of Section 5 of the 1991 Act, the objects of a policy
plan shall be to promote the orderly physical
development of the area
to which that policy plan relates
to
the benefit of all its inhabitants.
[9] He says that neither
of the Physical Planning Acts have, nor can the Guide Plan have as
its intention, the protection of a specific
class of persons or of
the Plaintiff specifically. Rather the Acts and/or the Guide
Pan/Structure Plan were enacted for the benefit
of all inhabitants
and to orderly regulate future planning for development.
[10] In the premises, he
submitted that prejudice to the Plaintiff cannot be presumed as
foreseen by
PATZ
v GREENE & CO
1907 TS 427
and that the Plaintiff had to plead prejudice as a
general requirement for purposes of a final interdict. The Plaintiff
has failed
to make any such allegations.
[11] He argues that in
the premises, in the absence of an allegation that the erection of
buildings constituted use of the land for
a purpose different than
that for which it was being used before enactment of the Guide Plan
or from what is provided for in terms
of a Town Planning Scheme, the
allegations of the Applicant do not constitute illegal action by the
First Defendant.
[12] Counsel for
excipient accordingly submitted that the Applicant cannot avail
itself of the type of interdict foreseen by the decision
in
PATZ
v GREENE
(supra)
.
He further submitted that such type of interdict foreseen by
PATZ
V GREENE (supra)
,
only provides for a prohibitory action and not for a mandatory
interdict, such as is claimed by the Plaintiff.
[13] As to the
prohibition in clause 2.2, counsel for excipient stressed the words
“shall be permitted”. He says it is clear
from section 6A(1)(a)
and (b) that the purpose of a guide plan was to be “
a
draft Guide Plan in which guide lines for the future spatial
development of the area defined in the Notice are laid down”
and
that the plan could determine that “
the
land may be utilised for a specific purpose only or … according to
the provisions of the plan, also for such other purposes
for which
provision is made by the plan”
.
[14] Counsel says the
intention was not to regulate the owners of land, such as the First
Defendant, but the planning authorities.
Such is also patently
clear, so counsel says, from the absence of a provision in the 1967
Act that creates a criminal offence, in
the event of, or that at
least, prohibits any actions by a land owner which is conflict with a
Guide Plan. The Act only forbids
a change of use in land and/or use
for the purpose of land; from what it was either being used for
before approval of a Guide Plan
or from what is provided for in a
specific Town Planning Scheme.
[15] Counsel says the
intention of the Guide Plan was to regulate the planning authority
and not the owner of the land. He says the
owner was only regulated
by means of the provisions of the Act which stipulated that he was
not allowed to change the use of his
land or to use it in
contravention of a Town Planning Scheme.
[16] In the premises he
submitted that clause 2.2 of Annexure “C” of the Vaal River
Complex Guide Plan and/or
Regional Structure Plan, does not and
cannot regulate the
actions of a land owner, such as the First
Defendant but rather the authorities who are to decide upon the
future spatial development
of an area when approving the
establishment of townships and/or approving applications for
amendments of land use.
[17] Counsel for
excipient submitted that should it be found that clause 2(2) of the
Guide Plan/Regional Structure Plan, seeks to
prohibit an owner from
erecting buildings below the 50-year flood line without the consent
of the Rand Water Board, then clause 2(2)
goes beyond the powers of:
(i) The Committee that
was established to compile a draft Guide Plan; and
(ii) The Minister to
approve such a Guide Plan.
[18] In the premises,
counsel submitted that an interpretation of clause 2(2) which limits
the First Defendant’s rights of
ownership to be subject to the
consent of the Plaintiff, would be
ultra
vires
Guide Plan’s empowering provisions. He submitted that the
interpretation of the entire Annexure “C” to the effect that it
regulates the property owner itself, would be
ultra
vires
the empowering provisions contained in Section
6A(1).
[19] Counsel says neither
Section 6A(1) of the 1967 Act, nor Section 6 of the 1991 Act, grants
the authority for a Guide Plan to determine
the manner in which land
is to be used, such as for agricultural purposes, industrial
purposes, townships development, open spaces,
etc. In the premises,
counsel submitted that the provisions of Annexure “C” of the
Guide Plan is
ultra
vires
.
[20] Excipient asks that
the exception be upheld and that the
particulars of claim be
struck out.
ASSESSMENT OF
EXCIPIENT’S SUBMISSIONS
[21] Whatever is
reasonably incidental to the proper carrying out of an authorised
power, is considered as impliedly authorised.
See
MAKOKA
v GERMISTON CITY COUNCIL
1961 (3) SA 573
(A) at 582A:
“
A
power would be regarded as reasonably ancillary to the main power
conferred if the true object which the legislature had in mind
in
conferring that power, would be defeated if the ancillary power is
not implied, or if the power conferred cannot in practice be
carried
out in a reasonable manner unless the ancillary power is implied.”
See also
STOFBERG
v LADYBRAND KO-OPERATIEWE LANDBOU MAATSKAPPY BPK
1970 (2) SA 57
(O) at 61 H – 62 D;
CAPE
DIVISIONAL COUNCIL v WESTERN CAPE TIMBERS (PTY) LTD AND ANOTHER
1976 (3) SA 714
(C) at 717A – C.
[22] The
Guide Plan does not in terms make provision for the Applicant to
apply for a demolition order when there is non-compliance
with clause
2.2 nor does it in terms make provision for any alternative
procedures to be followed. It would be impossible for the
Plaintiff
to reasonably fulfil the statutory obligations imposed upon it by
clause 2.2 should it not have the ancillary power of
applying to a
court of law to obtain a demolition order against an owner of land
who erects buildings or permits buildings to be
erected on his land.
The power to make
demolition orders is a power which courts have exercised over a
number of years to enable parties to enforce compliance
with
contractual and statutory rights.
[23] In a long line of
cases, the courts have held that it has a discretion to award damages
rather than an order to demolish a building.
The significance
thereof is that the right to order demolition is accepted:
HORNBY v
MUNICIPALITY OF ROODEPOORT-MARAISBURG AND ARTHUR
1918 AD 278
at 296/7;
DE
VILLIERS v KALSON
1928 EDL 217
at 231;
HIGHER MISSION
SCHOOL TRUSTEES v GRAHAMSTOWN TOWN COUNCIL
1924 EDL 354
at 366;
TOWN
COUNCIL OF ROODEPOORT-MARAISBURG v POSSE PROPERTY (PROPRIETARY) LTD
1932 WLD 78
at 87/8;
JOHANNESBURG
CONSOLIDATED INVESTMENTS CO LTD v MITCHMOR INVESTMENTS (PTY) LTD &
ANOTHER (supra)
at 405 D – 407 G;
RAND
WATERRAAD v BOTHMA EN ‘N ANDER
1997 (3) SA 120
(O) at 130 F – 138 H.
[24] Where a party
seeking relief for contravention of a statutory provision is not
obviously the object of protection by such provision,
it is generally
necessary that such party allege and prove that it is a member of a
class of persons whose interests are sought to
be protected by the
statutory provisions in question, or that it has suffered special
damages as a result of such contravention.
See -
ROODEPOORT-MARAISBURG
TOWN COUNCIL v EASTERN PROPERTIES (PROP) LTD
1933 AD 87
at 94-95;
UNITED
DAIRIES CO-OPERATIVE LTD v SEARLE AND ANOTHER
1974 (4) SA 117
(ECD) at 124 F – 128 A;
VON
MOLTKE v COSTA AREOSA (PTY) LTD
1975 (1) SA 255
(C) at 259 A – B.
MINISTER
OF HEALTH AND WELFARE v WOODCARB (PTY) LTD AND ANOTHER
1996 (3) SA 155
(N) at 160 C -162 A.
[25] The Plaintiff does
not fall within such a category. The Plaintiff, in terms of the
Guide Plan, is the authority charged with
giving or withholding its
consent for the erection of certain structures below the flood
control line. In such circumstances it
is not necessary to allege or
prove that the Plaintiff is a member of a class of persons whose
interests are sought to be protected
by clause 2.2, or that it has
suffered special damages or prejudice as a result of the actions of
the First Defendant.
[26] Mr. Gautschi
submitted that the Plaintiff’s clear right is based upon its role
given to it in terms of the Guide Plan to regulate
building
operations below the flood line as determined by the Plaintiff and
its right to protect its right of control by means of
an interdict.
See
CITY
COUNCIL OF JOHANNESBURG v BERGER
1939 WLD 87
;
KINGWILLIAMSTOWN
MUNICIPALITY v HORWITZ
1946 EDL 128
at 131. He says the Plaintiff’s rights in this regard
are set out in paragraphs 4 to 13 of the particulars of claim, and
have
been sufficiently pleaded. In my view the Plaintiff has shown
that it has a right which is being offended against by the actions
of
the Defendants.
[27] Whereas Mr
Serfontein, for second defendant says that the erection of a building
does not necessarily change the use of the land,
Mr. Gautschi says
that the erection of a building clearly constitutes a different
purpose for which the land is used than its use
as barren farm land.
Mr. Gautschi says the moment you erect a building the purpose
changes, and that the allegation in the particulars
of claim that the
buildings were erected in contravention of legislation as per clause
2.2 of Annexure “C” to the Guide Plan
establishes unlawfulness as
required. I am satisfied that further physical development includes
the erection of buildings and that
the erection of the buildings
referred to in the particulars of claim, brought about a change of
land use.
[28] In my view the
interpretation of clause 2.2 relied upon by the second defendant,
namely that it only prohibits an authorising
local authority (such as
a local authority empowered to give permission for the construction
of buildings) to authorise construction
of structures, if permission
has not been obtained from the plaintiff, is a forced interpretation
not supported by the wording of
clause 2.2 in its ordinary sense.
The interpretation of clause 2.2 contended for by the Second
Defendant would lead to the absurdity
that where a land owner erects
structures without applying for any permission of any kind from the
relevant authority, there would
be no recourse against such land
owner. Furthermore, such powers as the Plaintiff contends for in his
this case, have been enforced
by the courts. See
RAND
WATER BOARD v VEY AND ANOTHER,
WLD Case No 27312/92, unreported decision 19 April 1993.
[29] In answer to the
argument that clause 2.2 is
ultra
vires
,
Mr Gautschi highlights the words “or any specified authority” in
section 6A(1)(b) of the Physical Planning Act 88 of 1967,
as it
existed at the relevant time:
“Such
plan [i.e. the Guide Plan] can determine that land may be utilised
for a specific purpose only or, with the
consent of the
Minister or Administrator
or
a specified
other
authority
, according
to the provisions of the plan, also for such other purposes for
which provision is made by the plan.”
(Emphasis added).
[30] The empowering
statute therefore clearly provides that the Guide Plan may require
the permission of the Minister or Administrator
or some other
specified authority (such as the Plaintiff) to be obtained before
land may be utilised for a purpose other than specified.
[31] The empowering
statute clearly limits the rights of ownership of the land owner and
regulations issues in terms of it such as
the Guide Plan, regulating
procedures to obtain such permission cannot be
ultra
vires
.
[32] I agree with Mr
Gautschi when he says that the Physical Planning Act does not stop at
laying down guidelines. Section 6A(1)(b),
inserted in 1971 by
section 6 of Act 73 of 1975 refers to powers of the minister,
Administrator “or a specified other authority”.
He says the
1967 Physical Planning Act is a empowering Act to regulate and
prohibit. In terms of the Physical Plan Act 125 of 1991
a guide plan
should be deemed a regional structure plan (s. 37(2)(a)(ii)(bb)).
Mr. Gautschi referred specifically to section 27
(1)(b) of the 1991
Physical Planning Act which contains a prohibition and which makes it
clear that the Act is not there merely for
planning. S 27(1)(b)
creates an offence and clearly goes wider than planning.
[33] This being a
pleading where the plaintiff relies on subordinate legislation, there
is no need to refer to all empowering legislation.
CONCLUSION
[34] On the defendants’
interpretation of clause 2.2 if a person bypasses the local
authority, the plaintiff would be powerless
to act. I am satisfied
that the interpretation of clause 2.2 relied upon by plaintiff is the
correct one, namely that it empowers
plaintiff to act as it does in
the particulars of claim. Plaintiff is qualified to regulate
buildings and structures with reference
to the flood line of the
river, and plaintiff can only properly fullfil this control function
if it has the power to obtain a demolition
order.
[35] At the very least,
the interpretation of plaintiff’s powers relied upon by the
plaintiff is a reasonably possible interpretation
which cannot be
excluded.
[36] As to costs, I am
satisfied that the complexity of this matter warranted the employment
of two counsel. The notice of exception
was signed by two counsel.
The matter is of importance to the respondent, and it was a wise
precaution to employ two counsel.
[37] The second
defendant’s exception against the plaintiff’s particulars of
claim is dismissed with costs, including the costs
attendant upon the
employment of two counsel.
____________
A. KRUGER, J
On
behalf of Excipient/Second Defendant: Adv. E.F. Serfontein
Instructed
by
Neuhoff
Van Deventer
BLOEMFONTEIN
On
behalf of Respondent/Plaintiff: Adv. A. Gautschi SC and
Adv.
I.M. Lindeque
Instructed
by
Hill
McHardy & Herbst
BLOEMFONTEIN
On
behalf of First Defendant: No appearance
/ec
/sp