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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
CASE NO: 2021/A80
MAG COURT Case No: 5932/2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 19/9/2025
In the matter between:
THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY APPELLANT
and
THABO KGOSANA FIRST RESPONDENT
MAKY KGOSANA SECOND RESPONDENT
(Collectively referred to as the Kgosanas)
Neutral Citation:
Delivered: By transmission to the parties via email and uploading onto Caselines the
Judgment is deemed to be delivered.
JUDGMENT
SENYATSI J (BAM J concurring)
Introduction
[1] This is an appeal against the judgment and order of the Magistrate's Co urt for
the District of Pretoria North (the co urt a quo) handed down on 20 March 2020 by
Magistrate Ramahanelo, in terms whereof an interim interdict granted against the
respondents on 6 November 2019 was discharged. The interdict prohibited the
respondents from operating a liquor business from their residential property, pending
the finalisation of an application for a final interdict and a demolition order.
Background
[2] The appellant (the Municipality) sought relief against the respondents, a
married couple, on the grounds that they had erected structures on their residential
property to operate a business, specifically a tavern, which also sells food. The
appellant contended that this use of the property and the associated structures
contravened its Town Planning Scheme, the National Building Regulations and
Building Standards Act 103 of 1977 ("the Building Standards Act"), and its by
laws.
[3] The interim interdict was granted by agreement on 6 November 2019. When
the matter proceeded for the final relief, the court a quo , in a brief judgment,
discharged the interim order. The learned magistrate found, in essence, that
because the respondents possessed a valid liquor license issued by the Gauteng
Liquor Board, there was no justification for the court to order the demolition of the
structures from which the business was operated.
[4] Aggrieved by this decision, the appellant appeals to this court.
Submissions by the parties
[5] Advocate Buthelezi, for the appellant, submitted that the court a quo
fundamentally misdirected itself. She argued that the possession of a liquor license
is irrelevant to the question of whether the respondents' use of the land and the
physical structures thereon comply with municipal town planning and building
regulations. The two regulatory regimes - liquor licensing and land use management
- are distinct and administered by different organs of state.
[6] Counsel further submitted, compellingly, that the liquor license itself may have
been issued erroneously. He drew the Court's attention to section 24(3) of the Liquor
Act 59 of 2003, which provides that the Liquor Board must require an applicant for a
license to prove that the applicant has the right to use the premises for the purposes
of the license in te rms of any law. A zoning certificate from the local municipality is
standard proof of this right. Advocate Buthelezi argued that the respondents, not
having obtained the necessary rezoning, could not have lawfully granted such
certificate, and thus the issuance of the liquor license was likely flawed. However, he
correctly conceded that the validity of the liquor license is not directly before this
court; the primary issue is land use and building control.
[7] The respondents, who initially appeared in person, were fortuitously assisted
by Advocate Arcangeli, who was present in court and generously offered to consult
with them and make submissions on their behalf. The Court expresses its gratitude
to Advocate Arcangeli for his assistance, which ensured the respondents were not
unduly prejudiced by their lack of legal representation. Advocate Arcangeli' s
submissions largely reiterated the position of the c ourt a quo , emphasizing the
respondents' possession of the liquor license as a shield against the Municipality's
action. He further indicated that the respondents' business was their livelihood.
[8] Importantly, when questioned by the Court, the respondents, through their
counsel, confirmed that since the judgment of the court a quo, they have not
counsel, confirmed that since the judgment of the court a quo, they have not
regularized the status of their property. They have not applied for, let alone obtained,
the necessary rezoning of the property from residential to business purposes. They
admitted that they continue to trade from the contravening structures.
The Legal Framework
[9] The legal principles are well-established and were not applied correctly by the
court a quo.
[10] First, the requirements for a final interdict are: (a) a clear right; (b) an injury
committed or reasonably apprel1endect; and (c) the absence of any other
satisfactory remedy.
[11] The appellant's clear right is derived from its statutory duty to administer and
enforce its Town Planning Scheme and the Building Standards Act. These laws are
enacted for the public good, to ensure orderly development, safety, and the
protection of the property rights of all residents. The respondents' unlawful operation
of a business in a residential area and their erection of non -compliant structures
constitute a direct injury to the appellant's statutory authority and the integrity of its
planning regime.
[12] Second, and crucially, the issue of a liquor license by the Provincial Liquor
Authority does not oust the jurisdiction of the Municipality nor absolve a landowner
from complying with municipal laws. This principle was succinctly stated in City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and
Another1, albeit in a different context, where the Constitutional Court affirmed the
distinct and separate responsibilities of different spheres of government. The Liquor
Board regulates the sale of liquor; the Municipality regulates land use and buildings.
Compliance with one does not equate to compliance with the other.
[13] The court a quo's finding that the liquor license was a bar to a demolition
order was a clear misdirection on a point of law.
[14] Furthermore, the appellant has no other satisfactory remedy. The respondents
have had ample opportunity, since at least November 2019, to bring their property
into compliance. Their own admission to this court confi rms that they have chosen
not to do so and continue to flout the law. The appellant is therefore left with no
alternative but to seek the cessation of the unlawful activity and the demolition of the
unlawful structures.
1 2012 (2) SA 104 (CC) para 24
Finding
[15] We find that the court a quo erred in discharging the interim interdict. Its
reasoning was based on an irrelevant consideration (the liquor license) and a
misapprehension of the applicable legal principles. The appellant has successfully
demonstrated a clear right, a continuing injury, and the absence of an alternative
remedy.
[16] The respondents' continued unlawful use of the property and their defiance of
the appellant’s lawful authority cannot be condoned. The fact that the business
provides their income does not trump the duty to comply with laws that apply equally
to all citizens.
Order
[17] In the result, the following order is made:
(a) The appeal is upheld.
(b) The judgment and order of the Magistrate's Court, Pretoria North (court a quo)
discharging the interim interdict is set aside and replaced with the following order:
"(a) A final interdict is granted, prohibiting the respondents from operating a
business, specifically a tavern or shebeen, from the property situated at ERF 1[...]
U[...] Street, Soshanguve WW, Pretoria.
(b) The respondents are ordered to demolish the structures erected on the said
property which were built for, or are primarily used for, the purpose of conducting the
business, within 60 (sixty) calendar days of the date of this order.
(c) In the event that the respondents fail to comply with paragraph
(b) above, the appellant is authorized to demolish the said structures and to recover
the costs of such demolition from the respondents.
(d) The respondents are ordered to pay the costs of the application, jointly and
severally, the one paying the other to be absolved."
(c) The respondents are to pay the costs of this appeal, jointly and severally at
scale A.
ML SENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,PRETORIA
I agree,
NN BAM
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE OF HEARING: 04 September 2025
DATE OF JUDGMENT: 19 September 2025
APPEARANCES
Counsel for the Appellant: Adv Buthelezi
Instructed by: Kunene Rarnapala Inc.
Counsel for the Respondents: Adv Arcangeli (pro bono) on the day of the hearing
Instructed by: