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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 6256/2023
(1)
(2)
(3)
REPORTABLE : YES/NO
OF INTERE ST TO THE JUDGE S: YE S/NO
REVISED.
......................... G)_ \
DATE : 16 Septem ber 2025 SIGNATURE .. -
In the matter between:
POLOKWANE LOCAL MUNICIPALITY
And
SELEMA PLANT HIRE CONSTRUCTION CC
Appellant
Respondent
Delivered: This judgment is handed down electronically by circulation to the
parties through their legal representatives' email addresses. The date for the
hand-down is deemed to be 16 September 2025.
JUDGMENT
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Makoti AJ
Introduction
[1] Long before our Constitution came into being there was the Magna Carta in
England which gave us a glimpse of how property rights may be respected,
protected and exercised. The same instrument also taught us that citizens
had to obey the law of the day. Its article 39 stipulates that the life, liberty, or
property rights of the free subjects of the King could not be arbitrarily taken
away. The rights may be impacted upon in terms of the law. Though the
Magna Carta is English, its vast historical teachings remain with us to this
day, which shall be witnessed in this judgment.
[2] This application lends the dichotomy between the free use or enjoyment of
property rights, and the statutory limitations to such enjoyment. The case
was instituted by the Polokwane Local Municipality (the Municipality) to
stop or prevent Selema Plant Hire Construction CC (Selema) from
conducting alleged illegal activities on its land property. The land property in
question is Portion 0, Plot 12, Erf 12, Elmadal Agricultural Holdings, Elmdale,
Registration Division LS (the property). It is situated within the geographical
area under the management of the Municipality.
[3] The Municipality alleges that Selema is using the property illegally as storage
facility for its construction vehicles. It further contends that the activity is
conducted in contravention of its by-laws and planning schemes. I shall
revert to this at a later stage.
[4] Selema is a business entity that hires out civil or construction plant. Its
website tells us so. It opposes the application and the relief sought against it
by the Municipality. The grounds for opposition will be considered below
alongside the grounds upon which the application is predicated. Both parties
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asked for costs to be awarded in their favour, contingent of course to them
succeeding. that they are successful with the application.
Identification of the issue for determination
[5] The interdictory relief that the Municipality is seeking is axiomatic, and I
foreshadowed it above. It prays for a final interdict to be granted restraining
Selema from using the property for parking civil construction plant. From
factual point of view this court will be required to determine whether the use
of the property amounts to an illegality. If that is proven, the court's focus will
turn to decide whether the Municipality has satisfied the requirements for
final interdicts.
[6] The case concerns the enforcement of the Municipality's land use laws, the
fundamental question being whether Selema is using the property in
contravention of the laws. If it is so, a follow-up question would be 'what
appropriate remedy should the court grant upon reaching that finding?' The
converse is however not controversial. That is, should the court find that
there is no illegal activity or contravention happening through the use of the
property, the case will stop there.
Background
[7] The Municipality is an organ of state that is reposed with the powers or
authority to manage and oversee the use of land properties within its area of
jurisdiction. The property referred to above is not different. Its use is subject
to the applicable laws. I do not foresee that this point can be contested by
anyone. Selema does not dispute in its answering affidavit that the
Municipality is legally entitled to adopt and regulate land use matters in its
area of jurisdiction.
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[8] Selema is a business entity in the form of Close Corporation. It is duly
registered as such and has as its business Portion 0, Plot 12, Erf 12,
Elmadal Agricultural Holdings, Elmdale, Registration Division LS. This is the
same address where the Municipality alleges the illegal activities are
happening. It is the registered owner of the land property, with effect from 10
February 2023.
[9] The property is listed as an agricultural holding. Its use is regulated in terms
of legislation. It is apposite to detail what the nature of an agricultural holding
is, from legislative perspective. The Agricultural Holdings (Transvaal) Act1
defines an agricultural holding as:
"agricultural holding" a portion of land not less than 1 morgen (8 565
square metres) in extent used solely or mainly for the purpose of
agriculture or horticulture or for breeding or keeping domestic
animals, poultry or bees" [Emphasis added]
[1 0] Though aged, the legislative definition still holds. Its use of words 'solely' and
'mainly' in the act signifies a prohibition to the use of agricultural holding land
for purposes other than what is listed in the definition. I go as far as to
suggest that land use that deviates from what is permitted or authorised
must be properly authorised. Selema and any land owner who intend using
land are required to first apply and obtain permission or approval from the
Municipality for the intended use, especially where such use would be for a
purpose other than agricultural use. In my view this cannot be disputed.
[11] To ensure that the land owners use their properties in terms of the approved
municipal land use scheme the Municipality relies on its officials to conduct
inspection and monitor how owners use their land properties. The officials of
the Municipality conduct regular inspections on properties in and around the
A ct No . 22 of 1919.
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Polokwane municipal area. In conducting the inspections, the officials pay
visitations to land properties to ensure that every land user does so within
the confines of the law. The laws in this regard would be municipal land use
scheme or by-laws which have been promulgated to regulate land use
matters.
[12] More directly applicable to the case at hand is the Municipality's own
legislation through which it regulates land use. through the Polokwane /
Perskebult Town Planning Scheme of 2016 (the land use scheme). The
scheme was published for purposes of promulgation on 28 July 2017 in the
Provincial Government Gazette, Notice Number 2837 of 2020. The scheme
is not under attack and is applicable.
[13] On 8 August 2022 an official of the Municipality attended at the property to
conduct regular inspection. Whilst at the property the said official, Ms Venus
Ngobeni, found a number of vehicles parked on the property. According to
the Municipality the vehicles are construction vehicles which are stored on
the property. Upon making the discovery Ms Ngobeni issued the Respondent
with a compliance notice on the same date.
[14] The compliance notice required the Respondent to cease using the property
as a storage facility for construction vehicles. The Municipal official, Ms
Ngobeni, visited the property again on 29 August 2022 to conduct another
regular inspection. Upon attending at the property she still found the vehicles
that she had discovered previously still on the property. She then issued the
Respondent with a second compliance notice.
[15] The second compliance notice dated 29 August 2022 had similar conditions
or directives. The notice concluded by informing the Respondent that should
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it fail to comply with the directive the Municipality would institute litigation in
order to enforce compliance with the Land Use Scheme .
[16] On 12 February 2022 a notice of demand was issued by the Municipality's
lawyers dated 12 February 2023. In the letter the Municipality informed the
Respondent that it has contravened the provisions of the Polokwane /
Perskebult Town Planning Scheme of 2016 by conducting a storage facility
of construction vehicles on the property. It also reminded the Respondent of
the previous compliance notices that were issued. It was again demanded
that Selema should cease operating a storage facility for construction
vehicles on the property, within 7 calendar days from the date of receipt of
service of the letter.
[17] The letter by the attorneys was served by the sheriff of Court. What gave rise
to this application is the contention by the Municipality that despite the
notices, Selema failed refused or neglected to cease the alleged illegal
operation on the property.
[18] I have indicated that the Respondent opposes this application. It disputes
that it is conducting an illegal operation or storage facility on the property. It
communicated its position to the Municipality on 6 March 2023 through a
letter which contended that it is not and has never conducted storage facility
business or operated an industrial manufacturing business on the property. It
however conceded that it is the owner of the vehicles that are parked at the
said property, but it's doing so without operating any construction business
on the premises.
[19] The Respondent further contents that the allegations that it is conducting a
storage facility of construction vehicles on its property are unfounded and
untrue. It indicated that it has never conducted any such business and does
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not intend to do so at any time in the future. In its letter responding to the
allegations raised by the Municipality in its compliance notices, Selema
indicated through its lawyers that as the owner of the property it parks its
vehicles without operating its business on the property.
[20] Paragraph 2 of the letter from Selema's attorneys reads as follows:
"According to para 3.2 and 3.5 of your letter, your client alleges that
our client is conducting/operating a storage facility and an industrial
manufacturing business without the necessary land use rights,
however, on our client is not and has not at any point intime
conducted a storage facility business or operated an industrial
manufacturing business on the property."
[21] The letter was in reaction to the demand to cease the illegal activities. To be
specific, the letter was a direct response to the one that was addressed to
Selema by the Municipality's lawyers. The letter alleges in paragraph 3.2 as
follows:
"You have contravened the provisions of the Polokwane/ Perskebult
Town Planning Scheme, 2016, in that you're conducting a storage
facility of construction vehicles at Plot 12, Elmdale Agricultural
Holdings, Elmadale, Polokwane without necessary Land Use Rights."
[22] This statement is consistent with the contents of the compliance notices that
were issued by the Municipality. The notices identified the offending conduct
as storage of construction vehicles which in scription is made in the letter's
manuscript. This is what heralded the conflicting views or arguments
between the parties.
[23] The Court file contains photographic images of the property, which also
shows the kind of vehicles that are stored on the land. They are the ones
that the Municipality contends are construction vehicles. Amongst ham are
tipper trucks, TLB's and other heavy equipment which are used on
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construction sites. The Municipality contends that the land user must obtain
authority or approval to park such vehicles on the property.
[24] It is common cause that Selema did not obtain approval from the Municipality
to park such motor vehicles on the property. The conduct complained of
must be looked into within the prism of the Municipality's by-laws and land
use scheme . If the conduct is such that it requires Selema to have first
obtained approval from the Municipality, then its use of the property without
such approval would be offending the prescripts. I deal briefly with the
legislative requirements.
Discussion of the case and consideration of the law
[25] Land use is regulated in terms of the Spatial Planning Land Use
Management Act2 (SPLUMA). The legislation was promulgated to provide a
system for the regulation and monitoring of land use. The Municipality is
empowered in terms section 24(1) of SPLUMA to adopt and approve a land
use scheme for its area. When adopting the scheme , the Municipality was
required to first embark in public participation process(es). The land use
scheme was adopted in 2016 and it regulates land use within the
geographical area of the Municipality.
[26] The nature of such schemes was discussed by the Court in Pieterse NO v
Lepha/a/e Local Municipality,3 which was relied on by the Municipality, as
both executive and administrative. Importantly, the Court noted that the
development of such scheme falls within the remit of the Municipality. A
scheme required to include procedures and conditions for the use and
2
3
A ct No . 16 of 2013.
2017 (2) BCLR 233 (CC ) para 8.
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development of land.4 A land use scheme has the force of law5 and must
binds land owners, the Municipality and state-owned enterprises alike.
[27] Clause 41 of the Municipality's Town Planning Scheme deals with
enforcement of the scheme. The scheme reads in sub-clause (3) in the
following manner:
"A person who commits or knowingly permits a contravention of any
of the provisions of this Scheme or the requirements of any order or
notice issued or conditions imposed in terms of this Scheme, shall be
deemed to be guilty of an offense."
[28] Where there are non-compliance or an unlawful use, the Municipality is
entitled in terms of the scheme to issue compliance notices to land owners or
occupiers to demand compliance.6 Such notice is signed by an authorised
official of the Municipality. This is important as the Municipality has a duty to
not only uphold the law and to ensure that the law is upheld. Critically, the
Municipality must ensure that the provisions of its scheme are upheld for the
benefit of the public.
[29] Courts have accepted as clear right the Municipality's right to protect its
scheme. I am aligned with the notion expressed in this regard. For instance
in City of Johannesburg v Nair and Another (City of Johannesburg) it was
held in this connection that:
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6
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"(44] Therefore the applicant has an established right which is clearly
stated in the City of Johannesburg Land Use Scheme of 2018 thus, it
has a "clear righf' or "definite righf' on any usage of the said
property. Furthermore the applicant has a clear right to enforce
compliance with the provisions of the Scheme by virtue of the legal
Section 25(2) of SPLUMA.
Section 26(1)(a) of SP LU MA.
C lause 42( 1) of the Scheme.
City of Johannesburg v Nair and Another (4532/2020) [2021] ZAGPJHC 803 (27 October 2021 ).
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duty imposed on the applicant to ensure compliance with the said
provisions."
[30] This is not a new phenomenon . Many years ago a similar approach was
adopted in United Technical Equipment Co (Pty) Ltd v Johannesburg City
Counci/8 in which it was held amongst others as follows:
" ... A lenient approach could be an open invitation to members of the
public to follow the course adopted by the appellant, namely, to use
land illegally with a hope that the use will be legalized in due course
and that pending finalisation the illegal use will be protected indirectly
by the suspension of an interdict."
[31] This extract leads me to Selema's defense, which is that the Municipality has
not satisfied the requirements for interdict. The high watermark of Selema's
defense, relying on National Council of Societies for the Prevention of
Cruelty to An imals v Open shaw ,9 is that interdict is not a remedy for past
contraventions. On its argument the contravention that the Municipality is
aggrieved by has already taken place. For that reason Selema argued that
the application must be dismissed.
[32] The principle espoused above and in the authority mentioned in the
paragraph are trite and cannot be disputed. That said, however, the
argument misses an important consideration, which is that the breach is
continuing. It is the kind which, if not stopped, will continue into the future
and in a manner that will render the by-law ineffective or nugatory. Municipal
laws, as any other, must be protected against persistent infringement. I
accept it that the use of property in a manner that is not authorised, or
prohibited, constitutes an injury to the Municipality.
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9
1987 (4) SA 343 (T} at 348C.
2008 (5) SA 225 (SCA) at para 20.
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[33] I see no other way from stopping a continuing infringement other than
through interdict. In City of Johannesburg Metropolitan Municipality v Nair
and Another10 the Court made the following remarks before reaching the
conclusion to interdict the respondent in that case from using his property in
a manner that contravened the scheme:
"(50] It is clear that the respondents persist in using the property in
contravention of the Scheme. The applicant represents the public
interests of residents in the area of the Scheme and thus has a duty
towards the community to ensure that the activities and acts
performed by the respondents are unlawful and in contravention of
the Scheme."
[34] What remains is the question whether the Municipality has proven that it has
no alternative remedy. It contends that it has satisfied this requirement,
amongst the others. Courts have expressed a view on this issue. In Berg
R ivier Mun icipality v Zelpy11 the following was stated regarding any other
satisfactory remedy available to the Municipality, and in this case, criminal
prosecution:
"refers to the absence of similar protection by any other ordinary
remedy .... the protection afforded by an interdict is the cessation of
the unlawful activity: a criminal prosecution does not achieve
anything similar - it punishes past conduct (see Ebrahim v Twala &
Others 1951 (2) SA 490 (W) at 493A-B)." [Emphasis added]
[35] Moreover, it was held in Lester v Ndlambe Municipality and Others12 as
follows:
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"I conclude by reverting to what Harms J said in United Technical
Equipment, supra, with regard to the City Council's obligations to
City of Johannesburg, supra.
2013 (4) SA 154 (WCC).
2015 (6) SA 283 (SCA) at paragraph [27]; also see, United Technical Equipment Co v Johannesburg
City Council 1987 (4) SA 343 (T).
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enforce the law in the face of an ongoing illegality being perpetrated
by the appellant company in that case:
"The respondent has not only a statutory duty but also a
moral duty to uphold the law and to see to due compliance
with its town planning scheme. It would in general be wrong to
whittle away the obligation of the respondent as a public
authority to uphold the law. A lenient approach could be an
open invitation to members of the public to follow the course
adopted by the appellant, namely to use land illegally with a
hope that the use will be legalise in due course and that
pending finalisation the illegal use will be protected indirectly
by the suspension of an interdict." [Emphasis added]
[36] It goes without saying that the Municipality is entitled to demand that Selema
complies with the binding provisions of the land use scheme . This entitles it
to demand that Selema should only use the property only for activities
related to agriculture. It is clear that Selema does not intend to abide by the
scheme , and has no desire to cease its current use of the property. I find that
on that basis that the Municipality has made out a case in its contention that
there is continuous harm. If Selema is not told by the Court to stop using the
property in without approval being granted, it will continue to do so with no
end in sight. The scheme will mean nothing if that is allowed.
[37] I find no reason to not grant the Municipality the relief that it is asking for, and
to order Selema to desist from uncontrolled or unregulated use of the
property. It has no entitlement to use the property in the manner that it is
currently doing, without seeking and obtaining approval from the Municipality
in accordance with the scheme . Its denial that it is not using the property as
a storage facility for construction equipment is belied by photographic
evidence which reveals the opposite.
[38] Although Selema disputed that it was using the land for storage of the
[38] Although Selema disputed that it was using the land for storage of the
construction vehicles, it did not provide any details of what it is using them
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for. It did not plead that the vehicles are used in pursuit for agricultural
purposes. During oral hearing of the application a contention was made on
behalf of Selema that spatial planning scheme was not applicable. I do not
agree with the contention. One can hardly reason that there is land that is
not subject to spatial planning policies or laws.
[39] Another contention that was raised on behalf of Selema was that the policy
was not clear on what kind of vehicles can be kept on the land. Clause 7 of
the policy was particularly criticised on its behalf. Sub-clause 7.4 of the
scheme reads as follows:
"Parking Garages are permitted on "Business 1", "Business 2", "Industrial
1 ", and "Industrial 2" Use Zones, subject to the following conditions: A site
development plan and landscape development plan shall be submitted in
terms of Clause 31 of the Scheme."
[40] I part company with the notion that the scheme lacks clarity on the question
of what may or may not be parked. It unambiguously states that for parking
purposes a user has to submit to the Municipality a site development plan
and a landscape development plan. The ordinary language of the scheme
leaves no doubt on that score. The background to the passing of the scheme
stemming from SPLUMA is that the Municipality has to regulate land use.13
In my view the scheme leaves no room for doubt in respect of its
requirement for land users to submit the plans for garage or parking
purposes.
[41] It is common cause that Sele ma submitted none of the plans to the
Municipality. It has not applied to be authorised to use the property for the
purpose of storing construction vehicles, or to have garages on the land. I
13 Bothma-Botha Transport (Edms) Bpk v S Bothm a & Seun Transport (Edm s) Bpk [2013] ZASCA
176; 2014 (2) SA 494 (SCA), paras 10 to 12 and in North East Finance (Pty) Ltd v Standard Bank of
South Africa Ltd [2013] ZASCA 76; 2013 (5) SA 1 (SCA) paras 24 and 25
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would have expected a party that is uncertain about the bounds of a scheme
does not just act, or even refuse to comply when told that it is using land
unlawfully. A law abiding person takes steps to enquire as to why it is alleged
that its use of the land is in contravention of the policy, especially where, as
Selema contends, the policy may seem to it unclear. I find its conduct
inimical to good and orderly statesmanship. Respect for the law is good
citizenship.
Determination of costs
[42] Both parties want costs if they succeed. This accords with the default
position that costs follow the cause. It is well settled in our jurisprudence
that the determination of costs is a matter within the judicial discretion of the
Court, which discretion must be applied judiciously.14 When granting costs
the Court indemnifies the successful party for the expenses which he
incurred after having been unjustly compelled to initiate or defend
litigation.15 I find no reason why the costs should not follow the result, which
costs must still be just and equitable.
The following order is made
[43] The following order is made :
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(43.1] The application is granted in favour of the Municipality and Selema is
interdicted and restrained from using the property for storage of
construction vehicles or for any other purpose without approval from
the Municipality; and
Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and another
2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 88.
Kruger Bros & Wasserman v Ruskin 1918 AD 63 at 69.
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(43.2] Selema is ordered to pay the costs of this application on normal party
and party scale B.
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ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION
APPEARANCES:
FOR APPLICANT
FOR FIRST RESPONDENT
DATE RESERVED
DATE DELIVERED
ADV R BALOYI
TSHIKOVHI ATTORNEYS
APPLICANT'S ATTORNEYS
68 MARSHALL STREET
POLOKWANE
ADV R MATHEVULA
NK VUKEYA ATTORNEYS INC
62 DORP STREET
POLOKWANE
13 FEBRUARY 2025
16 SEPTEMBER 2025