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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 13661/2021
In the matter between:
ALBERT CHARL KRUGER Applicant
and
BIRKENHEAD CONVENIENCE CENTRE (PTY) LTD
t/a SASOL MELKBOSSTRAND First respondent
THE CITY OF CAPE TOWN Second respondent
Coram: Van Zyl, AJ
Heard on: 13 October 2025, final submissions made on 17 October
2025
Judgment: : 3 February 2026
Summary: Interpretation - City of Cape Town Municipal Planning By -law, 2015 –
Development Management Scheme - whether a se rvice station may retail liquified
petroleum gas from land not zoned for Risk Industry use – zoning of property in
question General Business 1, coupled with consent use approval - such retail lawful
on the facts
Costs – issue for determination squarely one of interpretation – no constitutional
aspects raised – the Biowatch principle does not apply in favour of the applicant in
relation to the second respondent’s costs
___________________________________________________________________
ORDER
The application is dismissed, with costs, including the costs of two counsel in
respect of the City. Counsel’s fees are to be taxed on Scale C.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. This application concerns a question of interpretation:1 does the City of Cape
Town's development management scheme (DMS), read with the relevant
provisions of its Municipal Planning By -law, 2015 (the By -law),2 permit
liquified petroleum gas (LPG) to be retailed from a property with a business
zoning that has been authorised , by way of c onsent use, for the operation of
a service station?3
2. The applicant contends that the DMS does no such thing. He argues that the
operation of an LPG facility at the property in question is unlawful because
the property is not zoned for Risk Industry (RI) under the DMS .4 He
accordingly seeks a declarator that the operation of infrastructure for the
1 The papers are voluminous and traverse wide -ranging disputes, but the parties have
narrowed the issue for determination by agreement.
2 The DMS is promulgated as part of the By-law.
3 The development rules relating to service stations are found in Item 57 of the DMS.
4 The RI zoning is dealt with in items 74 to 79 of the DMS.
storage and supply of LPG in the property is contrary to section 35(2) 5 of the
By-law. He also seeks interdictory relief prohibiting the first respondent from
operating an LPG facility on the property “until such time as it has obtained
the necessary land use permissions to do so under the By-law”.
3. The respondents disagree. They make common cause in saying that on a
proper interpretation of the relevant legisl ation an RI zoning is not necessary
to store or sell LPG. A consent use approval for the property to operate a
service station is a sufficient land use permission to operate an LPG facility
there.
4. On 8 August 2025 (after the institution of this applicati on) the City
promulgated various amendments to the By -law.6 The amendments came
into effect on 1 October 2025, and they were therefore operative when this
matter was argued. Although the affidavits deal only with the By-law as it
stood prior to the amendm ents, the parties were agreed that the 2025
amendments apply to this case because this court must consider the current
law in deciding whether to grant an interdict . An interdict cannot remedy past
illegalities; it can only be issued to address current or future infringements of
the law.7 The matter was thus argued on the basis of the 2025 amendments.
5. On a proper interpretation of the By-law and the DMS, then, what is the
position? In my view the applicant’s interpretation cannot be accepted . I am
reminded of what was said in Arprint Ltd v Gerber Goldschmidt Group South
Africa (Pty) Ltd:8
“Language is at best an imperfect vehicle for expressing thought and intention and
resort must from time to time be had to rules of construction. But where, as in this
5 Section 35(2): “No person may use or develop land unless the use or development is
permitted in terms of the zoning scheme or an approval is granted or deemed to have been
granted in terms of this By-law”.
granted in terms of this By-law”.
6 Under Proclamation 9/2025 Province of the Western Cape: Provincial Gazette Extraordinary
9117 dated 8 August 2025.
7 National Treasury and others v Opposition to Urban Tolling Alliance and others 2012 (6) SA
223 (CC) para 50; National Council of Societies for the Prevention of Cruelty to Animals v
Openshaw 2008 (5) SA 339 (SCA) para 20.
8 1983 (1) SA 254 (A) at 262F-H.
case, the plain and natural meaning of the word is clear there can be no call for the
application of the contra proferentem and contra stipulatorem rules. The only rule of
construction which might assist the plaintiff is that cited by Lord ATKIN
in Liversidge v Anderson (1941) 3 All ER 338 at 361 from Lewis Carroll's
masterpiece:
“'When I use a word', Humpty Dumpty said in rather a scornful tone, 'it means
what I choose it to mean, neither more nor less'. 'The question is', said Alice,
'whether you can make words mean different things'."
Counsel has not persuaded me that I can make the words "any legal action" mean
"only a particular legal action" or "only a legal action on an existing cause of action".
6. In the present application, too, it is not necessary to invoke rules of
construction to establish the proper interpretation of the By -law. The
meaning is plain, and counsel for the applicant has not persuaded me that I
can make the text, with context and purpose, mean something different.
The property, and the land use authorisations attaching thereto
7. The first respondent is the registered owner of Erf 4[...] Melkbosstrand, which
measures 3 272m² in extent . It is located in a typical suburban setting,
surrounded by residences, businesses, and community facilities.
8. Under the DMS9 the property is zoned General Business Subzone 1 (GB1).
The first respondent’s predecessor-in-title developed a Sasol-branded service
station on the property during 2004 with the City’s approval, together with the
necessary environ mental approvals from the Western Cape Provincial
Government.
9. The property enjoys, in addition, a consent use approval under the DMS that
permits the operation of a service station. The first respondent is the
proprietor of the service station. Its central location renders it well-suited for a
service station and – the bone of contention in this application - the retail
supply of LPG. This, and most of the material facts underpinning this matter,
supply of LPG. This, and most of the material facts underpinning this matter,
9 Item 59(b).
is not disputed on the papers but in any event falls to be accepted on the
principles set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd,10 as the applicant seeks final relief on motion.
10. The 2004 development consisted of a full retail forecourt with four service
islands, each with two dispensers and a retail outlet. The retail of fuel
included the sale and distribution of LPG, and the facility included a cylinder
manifold used to fill cylinders on site. On 27 July 2011, under the National
Building Regulations and Building Standards Act 103 of 197 7 (NBR), the City
approved the construction of a 5 000kg (5 tonnes) LPG facility on the
property.
11. During 2020 the first respondent made application to the City in terms of
section 42(j) of the By -law for the amendment of the existing approval
granted to increase the storage and handling capacity of LPG, and to provide
for an Autogas dispenser on the forecourt. The application was assessed in
terms of section 97 of the By -law, and submitted to various branches within
the City prior to approval.
12. Section 99 of the By -law sets out the criteria for deciding an application. An
application must be refused under section 99(1) if the City is satisfied that it
fails to comply with certain minimum threshold requirements. Subsection
99(2) provides that if an applica tion is not refused under subsection (1),
when deciding whether or not to approve the application, the City must
consider all relevant considerations, including those listed in the subsection.
13. Subsection 99(3), which deals with the desirability of the pro posed land use,
imposes a duty on the City to consider the extent to which the proposed land
use would be desirable in terms of, amongst other factors , the socio -
economic impact, compatibility with surrounding uses, its impact on the
safety, health and wel lbeing of the surrounding community, traffic impacts,
parking, access and other transport related considerations; and the
parking, access and other transport related considerations; and the
10 1984 (3) SA 623 (A) at 634G-635C.
imposition of conditions that can mitigate an adverse impact of the proposed
land use.
14. On 11 December 2020 the City approved the firs t respondent’s application
for the amendment of the conditions of the previous approvals on the bases
that the proposal was permitted under the DMS and conformed to the built
form, no additional land use rights were being applied for and the proposal
was i n line with the original approval granted in terms of the land uses
permitted, the proposal was supported by all of the relevant internal
departments to whom the application was circulated for comment; and the
application was in line with the criteria set out in section 99 of the By-law.
15. Earlier that year, on 24 April 2020, the City had approved new building plans
for the property to cater for an expanded facility comprising a 50 cubic metre
underground LPG storage tank, auto gas filling (that is, infrastr ucture for the
refuelling of vehicles with LPG), cylinder filling, and cylinder storage. The
facility's total LPG storage capacity is 42 tonnes (42 000kg).
16. Up until 31 January 2023, the LPG outlet constituted a "major hazard
installation" under the Occupa tional Health and Safety Act 85 of 1993
(OHSA).11 It is currently recognised as a "hazard establishment" in terms of
the Major Hazard Installation Regulations, 2022.
17. The applicant contends that the only zoning under the DMS upon which an
LPG facility such as the first respondent’s may lawfully be operated is that of
Risk Industry. The bases for this contention shifted throughout the
proceedings (mainly because the applicant was confronted , as the litigation
progressed, with the consequences of material con cessions made that
fundamentally undermined his case) but they appear to culminate in the
notion that a “a more liberal regime…applies to the special category of risk
activity ‘service stations’”. As will become clear, the applicant is driven to
activity ‘service stations’”. As will become clear, the applicant is driven to
11 Section 1 of the OHSA, and see the Major Hazard Installation regulations, 2022 promulgated
under the OHSA, published under GN R2989 in Government Gazette 47970 of 31 January
2023, read with the explanatory no te published under GenN 2841 in Government Gazette
51628 of 20 November 2024.
make this submission because he concedes, on the papers, that the
operation of a service station constitutes a risk activity that may lawfully be
operated in various zones, including the GB1 zone.
18. The applicant places much emphasis on what he regards as public safety
concerns as underpinning his application. The first respondent , on the other
hand, argues that the applicant is not socially -minded, but that his interest in
the matter is purely commercial , and that the application was brought for an
improper purpose because the first respondent is a competitor of the
business in which the applicant has an interest. This aspect becomes
relevant in relation to the question of costs, and I shall revert to it at that
juncture.
The proper interpretation of the DMS in th e context of the City’s constitutional
competence and the relevant principles of statutory interpretation
19. It is necessary, at the outset, to consider the City’s legislative powers in
regulating the operation of LPG facilities such as the one in the presen t
matter. The principles underlying the interpretation of the City’s legislation
are touched upon thereafter.
20. Under the Constitution of the Republic of South Africa, 1996, the City is
exclusively responsible for administering municipal planning matters i n Cape
Town. It has original legislative powers regarding such matters which entail
“a regulatory and policy-making role more than a mere authority to administer
and implement prescripts”.12
21. The City adopted the By -law, including the DMS, pursuant to thes e powers.
The DMS thus has legislative force under the Constitution. 13 Section 26(3) of
12 Cape Town City v Independent Outdoor Media (Pty) Ltd and others 2024 (1) SA
309 (CC) paras 45; and 47 -48. See section 156( 1)(a) and (2) of the Constitution,
read with Schedu le 4B; Fedsure Life Assurance Ltd and others v Greater
Johannesburg Transitional Metropolitan Co uncil and Others 1999 (1) SA 374 (CC)
Johannesburg Transitional Metropolitan Co uncil and Others 1999 (1) SA 374 (CC)
paras 26 and 38; City of Cape Town and another v Robertson and another 2005 (2)
SA 323 (CC) paras 53-60.
13 Section 43(c) read with 156(2) of the Constitution.
the Bylaw itself provides that “[t]he development management scheme is an
integral part of [the] By -law and it has the force of law ”.14 The DMS regulates
a complex, pol icy-laden intersection of rights , obligations, and interests,
including use rights, spatial policies and social inclusion, economic and
sustainable development, environmental protection , and public health. 15 It is
by now trite that t he policy choices it ref lects are, as a requirement of the
doctrine of separation of powers, owed due deference in recognition of the
City's constitutional legislative competence, its findings of fact and policy, and
its expertise and experience. 16 Insofar as policy (amongst othe r factors)
informs interpretation, I cannot agree with the applicant’s submission that the
evidence on record in these proceedings are to be considered without
deference to the City in relation to policy, simply because the dispute entails
a discrete question of statutory interpretation which is the sole province of this
Court.
22. The applicant suggested in argument that the retailing of LPG could have
been addressed “through smaller supply operations, which are commonplace
and routinely authorised by the Cit y”. The City’s explanation of the DMS's
legislative purpose regarding the regulation of the retail of LPG and other
fuels, as well as its justifications therefor, are however uncontradicted on the
papers. It is th us not open to the applicant to call those purposes and
justifications into question in his legal submissions. The DMS itself stands
unchallenged, and the parties and this court are bound to accept and apply
its provisions as adopted by the legislature. 17 Put differently, the applicant
may not question the lawfulness of the LPG facility based on his
disagreement with the DMS's provisions or his view that the DMS could have
achieved its objectives in a different manner.18
14 See Walker v City of Cape Town and others [2024] 2 All SA 612 (WCC) para 14.
14 See Walker v City of Cape Town and others [2024] 2 All SA 612 (WCC) para 14.
15 See section 26 of the By-law.
16 See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others
2004 (4) SA 490 (CC) paras 46 -49 in relation to administrative action, but also applicable to
legislation.
17 Minister of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd and
others 2014 (1) SA 521 (CC) paras 40-47.
18 Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC)
paras 77-78.
23. As a basic premise, the interpretation of legal documents requires the
consideration of the triad of text, context and purpose. The applicable
principles of interpretation (including statutory interpretation) are, in brief, that
words must be given their ordinary meaning, unless doing so would result in
an absurdity. Provisions must be interpreted contextually, purposively and as
far as reasonably possible in conformity with the Constitution ,19 and a
sensible interpretation should be preferred to an insensible one . Courts must
guard against inserting what they think a reasonable, se nsible or businesslike
outcome would be, because that trespasses from interpretation into
legislation.20
Text
24. In terms of section 35(2) of the By -law, no -one may use or develop land
unless permitted by the zoning scheme or through a municipal -planning
approval. Section 1 of the By -law defines “approval” to mean a “ permission
including any conditions, granted or deemed to have been granted in terms of
this By-law; and when a permission is granted on appeal in terms of this By -
law, 'approval' means only that decision including any conditions”.
25. Section 25(1) of the By -law provides that t he zoning scheme comprises the
DMS, zoning, map and zoning register. Under section 26(1)(a) of the By -law
the DMS regulates , inter alia , use rights and how land use is contro lled.
Section 1 of the By -law defines a “use right”, in relation to land, “ the right to
use that land in accordance with its zoning, a departure, consent use ,
condition of approval or any other approval granted in respect of the rights to
use the land.'21
26. It is common cause that t he consent use approval granted in respect of the
19 Minister of Water and Sanitation and others v Lotter NO and Two Similar Cases 2023 (4) SA
434 (CC) para 19.
20 See Close-Up Mining and others v Boruchowitz NO and another 2023 (4) SA 38 (SCA) para
20 See Close-Up Mining and others v Boruchowitz NO and another 2023 (4) SA 38 (SCA) para
23; Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para
18; Chisuse and others v Director -General, Department of Home Affairs and another 2020
(6) SA 14 (CC) para 48.
21 My emphasis.
property in this matter constitutes a municipal planning approval for purposes
of the By -law. The consent use allows the property to be used for the
purposes of a “service station ”. “Service station ” was, prior to the By -law’s
amendment, defined in item 1 of the DMS as “property for the retail supply of
fuel, and includes trading in motor vehicles, oil, tyres or motor spares, general
repairs to motor vehicles, exhaust fitment, shock absorber fitment, washing of
vehicles, and an ancillary shop; but does not include spray -painting, panel
beating or body work”.22
27. It is also common cause on the papers that what constitutes “ fuel” is not
defined in the DMS or the By -law, and that the con cept must therefore be
given its ordinary meaning, 23 which includes gas that is burned to produce
heat or power , that is LPG.24 It is also not disputed that the retailing of fuel
necessarily entails storing it on site. Clearly, therefore, under the pre -
amendment text of the DMS the conc ept of “ service station ” included the
retail sale of LPG. The DMS did not (and still does not) place a limit on the
quantity of LPG that a service station could sell or store.
28. As indicated, after the institution of this appl ication – challenging whether a
service station may sell LPG - the City amended the definition of “service
station” to read as follows (the relevant addition is underlined):
“'[S]ervice station' means property for the retail supply of fuel, and includes trading in
motor vehicles, oil, tyres or motor spares, general repairs to and servicing of motor
vehicles, exhaust fitment, shock absorber fitment, washing of vehicles, the sale of LP
gas or similar fuel and an ancillary shop; but excludes spray -painting, panel beating
or body work”.
29. The applicant says that the issues in this application are “ complicated
somewhat” by the fact that material provisions of the DMS have been
22 My emphasis.
somewhat” by the fact that material provisions of the DMS have been
22 My emphasis.
23 National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and
others 2000 (2) SA (CC) para 25.
24 See section 1 of the Petroleum Products Act 120 of 1977, which defines LPG as “a
petroleum product which consists mainly of propa ne or butane or both and which can be
stored as a liquid under relatively low pressure for use as a fuel”.
amended in the period between the delivery of the affidavits and the hearing
of the app lication. I fail to see the complication. T he amendment places
beyond dispute that a service station may sell and store LPG. This is
because, as the text indicates, the definition consists of an operative phrase
(“the retail supply of fue l”), various exa mples of what may be included in the
business of retailing fuel, and various exclusions. The “sale of LP gas or
similar fuel” is introduced as an express example of “the retail of fuel ”. I t is
not a separate concept or a different kind of activity separat e from the retail
supply of fuel. Had the City intended to restrict the sale of LPG as suggested
by the applicant, the LPG -specific amendments to the definition of “service
station” would have said so. Thus, regardless of the pre-amendment position,
from 1 October 2025 onwards LPG may, on the plain text of the By -law, be
sold and stored at a property whose zoning permits “service station” as a land
use.
30. The applicant nevertheless persists in the contention that service stations
may not sell LPG or that LP G may be sold only from RI zonings. He argues
that the amendment of the definition of “service station” shows that “the retail
supply of fuel ” is distinct from “the sale of LP gas or similar fuel ”. In other
words, t he amended definition includes a list of activities ancillary t o the
principal activity entailed in the use rather than specific examples.
31. I agree with the City’s submission, however, that that is a distinction without a
difference. Everything between the word s “fuel” and “shop” in the definitio n
consists of an iteration of the types of activity that may be conducted at a
service station. A service station, by definition, is engaged in “the retail supply
of fuel” as defined in the DMS. The words following “and includes” logically
and necessarily set out different examples of what constitutes 'the retail
and necessarily set out different examples of what constitutes 'the retail
supply of fuel' under the DMS. It is untenable to contend that “the sale of LP
gas” is a new concept, unrelated to the overarching concept of “the retail
supply of fuel ”. In fact, the applicant himself contradicts that contention by
admitting that LPG can be used as a fuel in internal combustion engines in
vehicles, and that the supply of fuel to vehicles falls within “the retail supply of
fuel”. Nowhere on the papers has it been suggested that “ retail supply” does
not include “sale” or that “fuel” excludes all forms of LPG.
32. A further argument raised by the applicant is that service stations are only
permitted to retail “cylinder LPG” for “non -vehicle purposes”, and only
pursuant to the authority t o operate an ancillary shop. 25 There is, however,
no such restriction in the DMS, and no basis upon which it can sensibly be
inferred from the text. As the applicant himself observes, it is well -
established that the definitions in the DMS should not be interpreted in a way
that defeats the purpose of the substantive provisions of the DMS.26
33. The DMS does not create a special dispensation for LPG sold in cylinders at
service stations . It does r egulate how LPG is stored and sold in certain
instances. A house shop, for example, is prohibited from storing gas for sale
and from engaging in the “sale of gas containers”.27 Had the DMS intended to
regulate how service stations may store or sell LPG for non-vehicle purposes,
its provisions regarding service stations w ould have done so expressly. It
does not do so, b ecause the s ale and storing of LPG at service stations are
regulated in the same manner, whether intended for vehicular or non -
vehicular use. The ancillary shop must be located on the same property as
the service station, as an ancillary shop is within the service station. There is
no safety, structural or other reason why only the shop should sell non -
vehicular LPG.
34. The applicant extracts more marrow from the “shop” bone: he argues that a
service station selling LPG is a shop, which ma y not undertake a “risk
activity”.28 He contends that t he definition of “shop” in the By-law means that
any enterprise at a service station involving the sale of LPG or similar fuel is
to be regarded as a shop as defined . A pl ace where a risk activity is
25 The shop must be “ancillary” and therefore “ directly related to, and subservient to, the lawful,
dominant use of the property”: see the definition of “ancillary” in item 1 of the DMS.
26 Fundstrust (Pty) Ltd (in liquidation) v Van Deventer 1997 (1) SA 710 (A) at 726H-J.
27 Item 28(f) of the DMS.
28 Defined in Item 1 of the DMS as as “ an undertaking where the material handled or the
process carried out is liable to cause combustion with extreme rapidity, give rise to poisonous
fumes, or cause explosion, and includes major hazardous installations and activities involving
dangerous and hazardous substances that are controlled in terms of national legis lation”.
conducted, so the argument goes, cannot be a business premises or a shop ,
and thus, to avoid “irreconcilable inconsistency ” with the definitions of
“business premises ” and a “shop”, a service station may not sell LPG in
quantities that render it a risk activity.
35. One returns to the text of the By -law: the amended definition of shop29 reads
as follows:
“'[S]hop' means property used for the retail sale of goods and services to the public,
and includes a retail concern where goods which are sold in such a concern are
manufactured or repaired; provided that the floor space relating to such manufacture
or repair shall not comprise more than 40% of the floor space of the shop; but
excludes an industry, supermarket, service trade, moto r repair garage, service
station (except the sale o f LP gas or similar fuel), restaurant, adult entertainment
business, adult services, adult shop or sale of alcoholic beverages.”
36. This mean s that a “shop” is “property used for the retail sale of goods and
services to the public”. It does not include a “service station”,30 but it may sell
LPG or similar fuel to the public. The definition does not mean that any
enterprise at a service station which sells LPG is a shop. It only provides that
a shop may sell LPG. That, in turn, does not mean that a service station may
not sell LPG : it would be irrational and inconsistent with the purpose of the
DMS (about which more below) to hold that a service station without a shop
could not sell LPG to vehicles.
37. In any ev ent, a shop as defined in the By -law does not exclude the
undertaking of a “ risk activity ” as defined. Only “business premises ” (and
“industry”) are limited by the express exclusion of risk activity , which means
that business premises does not permit the sale of LPG if it would be
constitute a risk activity (unless another land use permits such an
endeavour). No such limit applies to a service station, which may sell and
endeavour). No such limit applies to a service station, which may sell and
store LPG or similar fuel even where it constitutes a risk activity. The fact
29 In Item 1 of the DMS. My emphasis.
30 Without the express exclusion it would, because both constitute the retail sale of goods to the
public.
that a service station is not subject to the same limits as business premises
does not create an inconsistency. It simply reflects that they are different land
uses with different objectives and requirements. This aspect is dealt with in
more detail later in this judgment.
38. Having referred to the text, i t is necessary to look closer at the relevant
context, and the purpose of the DMS.
Context
39. The DMS regulates the use of land, but also (in terms of section 26(1)
thereof) facilitates the implementation of spati al policies , facilitates the
efficient, economic and sustainable use of land , and protects areas against
adverse development. Under the Spatial Planning and Land Use
Management Act 16 of 2013 (SPLUMA), the DMS is a “land use scheme” that
is consistent with SPLUMA. This relationship is referred to in the fifth
paragraph of the preamble to the By-law:
“WHEREAS section 2(2) of the Spatial Planning and Land Use Management Act
(Act 16 of2013) permits other legislation to prescribe an alternative or parallel
mechanism, measure, institution or system on spatial planning, land use, land use
management and land development in a manner consistent with that Act, and the
City intends through this By-law to prescribe such a mechanism, measure, institution
and system.”31
40. The DMS itself therefore provides a contextual framework for understanding
what activities are permitted at a service station, as defined , within the
allocated zoning . There are nine general categories of zoning, as well as
various subzones. Each zoning comprises a zoning category, the purposes
for which the land may be used, and the development rules that set out the
permissible extent of the land use.32
31 See also sections 24(2) and 25(1) of SPLUMA.
32 The Western Cape Land Use Planning Act, 2014, as provincial framework legislation, also
addresses the minimum functions of a zoning scheme. Sectio n 23 provides that the “ purpose
41. The property’s zoning, namely GB1, falls within the prescribed zoning
category of “ general business ”. General business zonings are “ designed to
promote economic development in business districts and development
corridors, and include a wide range of land uses such as business, residential
and community uses, although industrial development is restricted”.33
42. These zonings provide for general business activity and mixed -use
development of a medium to high intensity. Different development rules apply
to the different subzonings of GB1 -GB7, particularly with regard to permitted
height and floor space, to acco mmodate variations of built form within the
city. Notably, very few restrictions relate to use because the express aim is to
encourage a range of uses (with the proviso that i ndustry is not permitted).34
The GB zonings are therefore deliberately permissive , and allow for wide-
ranging uses to promote economic development and diversification. The only
restriction concerns industrial development, which is not relevant to the sale
of LPG. This is because under the DMS industrial uses are generally
concerned with manufacturing. A typical industrial use is a factory or similar
place where items are made, assembled, processed, repaired, painted,
packed, placed in cold storage , and so forth. Since the retailing of fuel,
including LPG, is not a manufacturing or ind ustrial use, the prohibition of
industry in GB does not preclude the sale of LPG in that zoning.35
43. The DMS prescribes “primary uses ” and “consent uses ” f or each identified
zoning. A primary use is permitted on the relevant property without the need
first to obtain the City's approval - it attaches, in terms of Item 10 of the DMS,
as of right to the zoning. A consent use is specified in the DMS but may only
be acted upon with the express prior approval of the City, as stipulated in
of a zoning scheme is to at least - (a) make provision for orderly development and the welfare
of a zoning scheme is to at least - (a) make provision for orderly development and the welfare
of the community; and (b) determine use rights and development parameters... "
33 See the introduction to Chapter 9 of the DMS.
34 See the introduction to Part 1 (General Business Subzonings) of Chapter 9 of the DMS.
35 See the introduction to Chapter 10 of the DMS, as well as the introduc tion of Part 1 of
Chapter 10, read with the definition of “industry” in item 1 of the DMS.
Item 13 of the DMS.36
44. The DMS permits a wide range of primary uses for GB erven , namely
“business premises, dwelling house, second dwelling, boarding house, flats,
place of instruction, place of worship, institution, hospital, place of assembly,
place of entertainment, hotel, confe rence facility, service trade, authority use,
utility service, rooftop base telecommunication station, multiple parking
garage, private road, filming, veterinary practice and open space”.37
45. It is clear that t hese primary uses include a diversity of residen tial, business,
and community uses. They allow large developments, such as schools,
universities and research institutions ( “places of instruction ”), hospitals,
hotels, and conference facilities , sports centres and stadiums ( “places of
assembly”), and amus ement parks ( “places of entertainment ”). They also
allow uses with po tentially significant impacts on their surrounds, including
gambling halls and nightclubs ( “places of entertainment”), builders' yards and
tyre fitment centres ( “service trades ”), veterinary practices ,
telecommunications infrastructure , water purification plants, waste -water
pump stations, waste -water treatment works, recycling facilities and
dumpsites ( “utility services ”); and fire stations, military bases , and police
stations (“authority uses”).
46. The DMS permits , too, various consent uses for GB erven , namely “ adult
shop, adult entertainment business, adult services, informal trading, expo
centre, motor repair garage, warehouse, freestanding base
telecommunication station, wind turbine in frastructure, transport use,
helicopter landing pad and service station”.38
47. The variety in primary and consent uses reflects the DMS's goal of allowing
many uses (other than industrial) on GB properties to promote economic
36 For example, an owner may build a dwelling house on their single residential property as of
right (because it is a primary use) but the same owner would have to o btain the City's
right (because it is a primary use) but the same owner would have to o btain the City's
consent to operate a guest house on that property.
37 Item 59(a) of the DMS.
38 Item 59(b) of the DMS.
development and diversification. The City submits that, in this context,
allowing service stations to sell and store LPG as part of the retail supply of
fuel in several zonings is a requirement of sensible land use planning.
Purpose
48. Turning to purpose: the purpose of the DMS's provisi ons regarding service
stations is explained in the City's explanatory affidavit, and is undisputed.
49. Fuel is vital for everyone in society - there is almost no aspect of modern life
that could function without it. Its everyday uses range from facilitating
transport to providing heat. In the modem context, and particularly in a large
city such as Cape Town, it is necessary to have a nearby source of fuel.
Retailing fuel (including LPG) has become a well -integrated feature of
modern urban areas , and such ret ail facilities are ubiquitous in residential,
business and mixed -use areas. Societies accept, expect , and depend on
them.39 In Cape Town there are approximately 367 service stations located
throughout heavily populated and trafficked residential, business , and other
areas to maximise their functionality, utility, and accessibility.
50. The retailing of fuel necessarily includes the on-site storage of that fuel. Thus,
a service station is permitted both to sell fuel and to store the fuel it intends to
sell. LPG can be used as a fuel for vehicles and, given its reduced carbon
emissions, is a comparatively green fuel that assists in combatting climate
change. It should therefore be made available with other vehicular fuels, such
as petroleum and diesel. LPG and other fuels (such as petroleum and diesel)
constitute similar land uses (the supply of energy), have similar hazards and
risks (including the storage of combustible substances, the emission of
poisonous fumes, and the possibility of an explosion), have simil ar social and
public benefits (providing essential energy sources and thereby supporting
social and economic functioning), and similar spatial and safety requirements
social and economic functioning), and similar spatial and safety requirements
(such as sufficient space, appropriate infrastructure for delivery, transfer and
39 As many a Capetonian running out of gas for the heater or stove on a rainy winter’s evening
would know.
storage). It is therefore logical, coherent and sensible for these fuels to be
regulated in the same way, pursuant to the same controlling concept , that is,
on the City’s case, a “service station” and the associated development rules.
51. It is for these reasons that the legislative policy of the City, and the purpose of
the DMS, is to allow the retailing of fuels (whether for vehicles or otherwise,
and whether in the form of petroleum, diesel or LPG) from a “service station”,
to regulate these activities in the same way. In the present matter, for
example, the building plans approved the LPG facility for cylinder filling,
cylinder storage and auto gas filling. This is because the relevant legislation
regulates the retailing of LPG for vehicles (that is, Autogas) and LPG for non-
vehicular consumption in the same manner in respect of service stations.
The City’s policy further aims to allow service stations to operate from a wide
range of zonings, including industrial, local business, general business,
mixed-use, RI and transport zones.
52. The applicant has not disputed any of these allegations. 40 A belated attempt
was made in his heads of argument to question the validity of the City's
evidence on context and purpose on the basis that the City’s deponents did
not have the requisite knowledge to provide such evidence . However, on the
papers none of the City’s deponents’ allegations regarding knowledge and
authority were denied , nor did the applicant dispute that the explanatory
affidavit had properly been delivered on the City’s behalf . The last-ditch
attempt to undermine such evidence is therefore without merit.
53. The applicant argues that the “retail supply of fuel” in the definition of “service
station” only permits the supply of fuel to vehicles , and does not allow the
retail supply of fuel for other purposes. He contends that the various
activities included in the definition of a service station are wholly concerned
activities included in the definition of a service station are wholly concerned
with aspects of maintaining and operating motor vehicles.'
54. I do not agree with this contention. At a b asic level, a service station is
40 Stellenbosch Farmers' Winer y Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at
235F.
permitted to have an “ancillary shop”, and there is no requirement that such a
shop may only retail goods that pertain to the maintenance and operation of
motor vehicles. Such shops commonly retail food, beverages and other
goods that have nothing to do with vehicular requirements. Textually, the By-
law does not restrict the supply of fuel to vehicles.
55. Such a restriction would be inimical, too, to the context and purpose of the
DMS referred to above. The uncontradicted ev idence on the papers is that
fuel in many forms is vital and that, for sound purposes of land -use
management, the DMS permits various fuels (petroleum, diesel , and LPG) to
be retailed for various purposes (use in homes, businesses , and vehicles) at
service stations. On the applicant’s interpretation, a service station would not
be allowed to supply essential fuel to operators of generators, boats, farm
equipment or other machinery that run on diesel or petrol. This restriction
would serve no rational or legitimate purpose, and the proposed interpretation
is untenable.
56. In any event, as counsel for the City submitted, the operative phrase in the
definition of “service station ” is “the retail supply of fuel ”. This includes the
various examples mentioned in the definition (such as trading in motor
vehicles and exhaust fitment), but is not exhaustive of the concept. The DMS
does not distinguish LPG from other fuels, and it does not distinguish fuel for
vehicles from fuel for other purposes. There is no specific zoning or land use
dedicated to the sale of non -vehicular LPG. LPG that is retailed to the public
to heat their homes and cook their food is as important as fuel for vehicles: it
serves a vital social and economic function and is subject to similar logis tical
and safety concerns. The applicant does not dispute that LPG for non -
vehicular purposes is a necessary form of fuel that should be widely
accessible to individuals and businesses across Cape Town. He concedes ,
accessible to individuals and businesses across Cape Town. He concedes ,
too, that restricting the availability o f LPG would be unsound land use
planning. Yet, the effect of his proposed interpretation of the DMS would be
to exclude the sale of LPG for non-vehicular purposes from Cape Town.
Safety aspects
57. The applicant is adamant that his challenge in relation to t he sale of LPG at
the property is rooted in reasonable safety concerns, given the location and
expansion41 of the property. It is therefore necessary to consider the aspects
relevant to these concerns, including the planning law governing risk activities
and RI zonings.
Zoning, land use, and activity
58. In his heads of argument, the applicant submits that the principal questions
which must be determined by the Court are (a) whether the DMS should be
construed such that a risk industry is permitted on any lan d unit where it is
not specifically prohibited and is ancillary to some expressly permitted use;
and (b) whether the land use "service station" encompasses a general
permission to store and sell LPG in any quantities.
59. These questions have already been add ressed in broad terms at the hand of
text, context, and purpose, but it is necessary to delve deeper into the
differences between zonings, land uses, and activities as contemplated in the
DMS.42 This is because the same activity may fall within different l and use
purposes, and permitted in various zonings.
60. One of nine general zoning categories defined in the DMS are the industrial
zonings set out in Chapter 10. These zonings “are designed to accommodate
manufacturing and related processes, ranging from gen eral industrial uses
which may have some impact on surrounding areas, to hazardous or noxious
41 The applicant maintains tha t it is common cause that the risk of an explosion has been
materially increased by the expansion of the LPG facility, although there is a dispute
regarding the likelihood of the explosion. This is not correct on the papers. The applicant
refers in this regard to the City’s affidavit which alleges that the first respondent's risk
assessment understates the risk of an explosion on the property, because there is n o
suitable parking for an LPG tanker, there is traffic congestion and insufficient parking and t he
assessment did not account for the increased risk of collision or tanker damage. The first
respondent expressly denied and substantively addressed these all egations in its answering
affidavit. Issues pertaining to the risk of an explosion are thus not common cause.
42 The applicant appears, for example, to conflate “risk activity” (an activity) with “risk industry”
(a zoning) to make his argument that a risk activity is not permitted within a zoning other than
RI.
uses which have a potentially high impact and must be carefully managed.
Industrial development has particular requirements for road and waste
infrastructure, and industrial-zoned land should generally be reserved for
industrial purposes to optimise this infrastructure and mitigate potential
impacts. In the General Industrial zoning two different subzonings
accommodate variations of built form, and opportunities ar e provided for
consent uses associated with industrial areas, such as factory shops. A
specific zoning is provided for noxious and risk industries”.43
61. There are two General Industrial (GI) subzonings, and a “specific zoning ...
for noxious and risk industr ies” (that is, RI zoning), which “provides for those
industries which are noxious in terms of smell, product, waste or other
objectionable consequence of their operation, or which carry a high risk in the
event of fire or accident ”.44 One of the primary us es45 for RI-zoned property
is a “risk activity”, which is defined 46 as “an undertaking where the material
handled or the process carried out is liable to cause combustion with extreme
rapidity, give rise to poisonous fumes, or cause explosion, and includes major
hazard installations and activities involving dangerous and hazardous
substances that are controlled in terms of national legislation”.
62. There is no dispute that the operation of an LPG facility such as the one
conducted at the property constitutes a “risk activity”. There is, however, no
“risk activity” zoning under the DMS. Instead, such an activity is permitted as
a primary use on properties with an RI zoning 47 and is expressly excluded
from other land uses , namely a business premises , industry, home
occupation, and various single residential uses. 48 In other words, although
“risk activity” is a primary use right in the RI zoning, this does not mean that
risk activities are not permitted in other zonings, whether as primary use or
43 See the introduction to Chapter 10 of the DMS.
43 See the introduction to Chapter 10 of the DMS.
44 Referred to in the introduction to Part 2 of Chapter 10 of the DMS.
45 Item 74(a) of the DMS.
46 In Item 1 of the DMS. My emphasis.
47 Item 74(a) of the DMS lists the primary RI uses as noxious trade, risk activity, crematorium,
rooftop base telecommunication station, free standing base communication station, private
road, open space, filming and additional use rights, being a factory shop.
48 Items 1, 23(a), and 26(1)(ii) of the DMS.
consent use. I think that counsel for the City is correct in submitting that i f
risk activities were only permitted on RI -zoned properties, it would be
redundant for the DMS expressly to exclude them from land uses that are
permitted on GB, GI, and single residential zones.
63. A risk activity may therefore lawfully take place where it is not prohibited , and
where the permitted land uses (whether labelled “risk activity” or not) allow or
necessarily entail the activity in question. Hospitals, for example, require
LPG and other chemicals that can combust with extreme rapidity, producing
poisonous fumes or caus ing explosions. They also feature activities that
involve hazardous substances that are controlled under the Hazardous
Substances Act 15 of 1973 (HSA), such as x -ray units, non-invasive blood-
pressure monitors , and diagnostic exercise devices. The operation of a
hospital therefore entails “risk activity ” – this is not disputed on the papers .
Yet, a “hospital” is a land use directly regulated by the DMS , and is a primary
use in one Community, multiple GB , and several mixed -use zonings.49 It is,
respectively under Items 40(b) and 46(b) of the DMS, a consent use in
General Residential zonings, and in one Community zoning. As long as the
relevant development rules are complied wi th, a hospital - as risk activity –
may thus be operated in various zones, and not only on RI-zoned properties.
64. In the present matter it is not disputed that the retail and storage of fuel can
cause extremely rapid combustion, give rise to poisonous fumes , or cause an
explosion. It is undeniably a risk activity. The retail supply of fuel however
also falls within the permitted activities of a service station. It may therefore
take place as a primary use on GI properties, and as a consent use on
properties with Local Business 2, GB, mixed-use, RI , and Transport 1
zonings.
65. Did the expansion of the LPG facility's storage capacity on the property in
zonings.
65. Did the expansion of the LPG facility's storage capacity on the property in
2020 render it liable to being restricted to properties with RI zoning s? The
49 See Item 48(a), Item 59(a), and Item 63(a) of the DMS.
applicant says it did.50
66. The DMS does not, however, restrict the large-scale storage of a hazardous
substance to RIzoned propert ies. Rather, the DMS anticipates that it may
take place in other zonings. Item 124 of the DMS empowers the City to
require an owner to have a risk management plan to the City's satisfaction if:
“(a) the owner applies for an approval under this By -law or a building plan approval
under the National Building Act; and
(b) the use or ancillary activity involves the storage of a hazardous substance that
may result in an installation being declared a major hazardous installation in terms of
occupational health and safety law.”
67. This provision is not limited to the RI zoning, but is generally applicable. If the
storage of such hazardous substances were limited to RI -zoned properties,
there would have been no need to make Item 124 of general application.
68. The applicant argues that there is no justification for excluding risk activities
from the GI zone, but permitting them in other zones designed for lower -
intensity use , such as general and local business. As is clear from the
context and purpose of the DMS referred to earlier, h owever, there are good
reasons why the retailing of fuel should be and is permitted on properties with
general and local business zonings. The s cheme of the DMS, its express
provisions, and its implications therefore establish that the same activity may
fall within different land use categories and be permitted under different
zonings. A n activity that falls within the definition of a “risk activ ity” is not
limited to RI properties. F uel (including LPG) may be retailed ( that is, sold
and stored) wherever it is lawful to operate a service station, which includes
properties with industrial (General and Risk), business (Local and General),
50 The applicant claims that the City does not as a rule approve building plans with LPG retail
operations with a capacity of greater than 1 500kg, and that the City has not responded
substantively to this allegation save to state that it does not necessarily refuse such building
plan applications. This is not correct: the City’s deponent explains that there is no such rule
regarding LPG operations with a capaci ty of greater than 1 500kg, and that the capacity has
been used as the threshold for determining when to require risk assessments rather than
whether to refuse or approve building plans. Plascon Evans applies.
mixed-use, and transport zonings.
69. The applicant contends that this interpretation is absurd because it permits a
service station freely to undertake any risk activity whatsoever. This is not
correct. Permitting the “retail supply of fuel”, including “the sale of [LPG] or
similar fuel” at a risk -activity level does mean that any risk activity (for
example, explosives factories) is permitted. In any event, as discussed
earlier, permitting a service station to undertake the risk activity in question is
not absurd, but compatible with the structure of the DMS. The DMS permits
various activities that fall within the definition of a “risk activity” to be
conducted outside of the RI zoning, across multiple zonings, across the
metropolitan area, and on widely accessible and highly trafficked properties.
70. The rule of law requires that laws be coherent, clear, stable , and
practicable.51 It is lawful and sensible for the owner of land, pursuant to a
consent to operate a service station, to be permitted to undertake any activit y
that is covered by the definition of a “service station ”. The DMS allows a
service station to engage in the retail supply of fuel , and it is therefore lawful
and sensible for the relevant owner to be permitted to sell fuel, including LPG.
The extent of a “risk activity” under the DMS
71. The applicant argues, in his heads of argument, that a risk activity under the
DMS does not include something with the potential to cause a modest
explosion, but only major incidents such as would qualify the particular
property as a major hazard installation or attract the strictures of national
legislation to control dangerous and hazardous substances. He submits that
the definition of risk activit y “clearly envisages undertakings that have the
potential to cause grave harm to life and property”.
72. The DMS’s definition of what constitutes a risk activity is quoted above. It
72. The DMS’s definition of what constitutes a risk activity is quoted above. It
51 Qwelane v South African Human Rights Commission and another 2021 (6) SA 579 (CC) para
148.
defines what a risk activity is, and then provides two examples. 52 It clearly
does not limit the definition to those examples. A “risk activity” is any activity
that may cause rapid combustion, create poisonous fumes , or cause an
explosion. There is no stipulation that the combustion, fumes or explosion , or
the effects thereof, must be major or in some other way substantial. The fact
that an installation is not a major hazard installation (about which I say more
later in this judgment) does not necessarily mean that the undertakings in
relation thereto are not risk activities.
73. The national legislation referred to in the DMS includes the H SA, in terms of
which the relevant Minister may declare any substance, mixture or electronic
product that might cause “injury, ill -health or death ” to be a hazardous
substance.53 The Minister has declared numerous hazardous substances,
including medical, dental , and veteri nary x -ray units , electron microscopes ,
visual display units, tanning lamps, microwave ovens, certain two-way walkie-
talkie radios, non-invasive blood-pressure monitors, and diagnostic exercise
devices such as treadmills. 54 Thus, the applicability of nation al legislation on
hazardous substances does not indicate that the activity in question poses a
risk of major damage. Instead, it includes many instances of minor damage
such as (to use counsel’s examples) an explosion from a microwave, a bu rn
from a tanning bed, or an injury sustained on a treadmill.
74. The concept of “risk activity ” under the DMS is thus wider than what the
applicant proposes in his heads of argument . Any quantity of LPG could
cause “combustion with extreme rapidity, give rise to poisonous fumes, or
cause explosion”. The effect of the applicant’s interpretation is that all LPG -
regardless of quantity - may be sold only from RI zonings. This flies in the
face of his concession on the papers that restricting the retail supply of LPG
to RI zones would be “unsound” land use planning.55
to RI zones would be “unsound” land use planning.55
52 “…includes…”
53 Section 15 of the HSA.
54 See the Schedule to Group III (Declaration of Group III Hazardous Substances) published
under GN R1302 in Government Gazette 13299 of 14 June 1991.
55 The applicant states that “I do not suggest that the retail supply of LPG should be confined to
properties zoned ‘Risk Industry’. I am in agreement with Ms. Dube that such a scheme would
be undesirable.”
75. The evidence establishes that the retail of LPG cannot be limited to RI zones,
because doing so would be unsound, impractical , and cause undue
hardship:56 The RI zoning is focused on manufacturing, not retailing . The
public, when conducting everyday retail activities such as purchasing fuel,
should not have to frequent RI zonings – in fact, the primary uses for RI
zonings do not permit retail activity . RI-zoned properties must be remote and
isolated, which is the opposite of what is required for the retailing of LPG and
other fuels. Th ere are very few (about 8) RIzoned properties across Cape
Town, and they are isolated at a substantial distance from residential and
mixed-use areas . These RI properties accommodate uncommonly
hazardous or noxious land uses , such as the Koeberg nuclear reactor, the
ammunition manufacturing plant in Paardevlei, the Strandfontein landfill , and
the Ankerlig power station in Atlantis . F rom a spatial planning perspective
they plainly should not be interspersed with ordinary residential, business ,
and community land uses . T here are no RI -zoned properties in the
residential and commercial centres of the Southern, Table Bay , and Northern
Districts of the City.
76. On the applicant’s interpretation of the DMS, the only property in Cape Town
from which an LPG facility could operate is the Astron Refinery. It is common
cause that that is the only RI property where a factory shop could lawfully
retail LPG. This is a nonsensical and impractical interpretation of the DMS,
particularly given the undisputed importance of ensuring that LPG is widely
and easily accessible across the metropolitan area.
77. By way of summary on this aspect, the applicant’s argument that “ confining
risk activities to the risk i ndustry zone ... is also the only sensible way of
interpreting the relevant provisions” cannot be sustained. His argument is ,
simply put, that operating the LPG facility constitutes a risk activity . T his
simply put, that operating the LPG facility constitutes a risk activity . T his
means that the DMS requires that the LPG facility can only be operated from
56 The City’s evidence in this respect is met with what amounts to a bare denial, and the
applicant has not established that such evidence is untenable or far -fetched. It must thus be
accepted under Plascon-Evans supra.
land with an RI zoning, and the first respondent’s operation is there unlawful
because the property is zoned GB1. As indicated, however, something that
constitutes a risk activity is not confined to RI zonings. The fact that the first
respondent’s LPG facility is a risk activity therefore does not make it unlawful.
78. In oral argument the applicant submitted that the breadth of the definition of
"risk activity" makes it “difficult to determine where the category's outer limits
lie”. He accepted that, b ecause a wide range of substances have been
declared as hazardous under the H SA without any reference to threshold
quantities, the effect of including the controlled substances subset is to
extend the designation "risk activity" to a w ide range of activities that do not
pose an inherent risk to the public and may not pose an appreciable risk at
all. Thus, so the argument goes, a literal interpretation of the term "risk
activity" would require that many innocuous commercial activities ( and even
certain household activities) are deemed risk activities.
79. The applicant maintains that this wide interpretation of a what a risk activity
entails would render the operative provisions of the DMS relating to risk
activities nugatory. The establish ment of a class of activities designated
"risk activities" and the stipulation that they may occur in a specific zone
would serve no purpose at all. This runs contrary to the well -established
principle that a Court must give effect to every word or clause used in a
statute on the basis that the legislature did not intend them to be
superfluous, void, insignificant, or repetitive.57
80. The applicant suggests that the way in which to avoid this is by interpreting
"risk activity" in a manner that incorporates a t hreshold standard for
deeming a particular undertaking a "risk activity". The core statement in the
definition, namely an "undertaking where the material handled or the
definition, namely an "undertaking where the material handled or the
process carried out is liable to cause combustion with extreme rapidity, give
rise to poisonous fumes, or cause explosion " should be treated as the
characteristic that qualifies a particular process or enterprise as a risk
57 Sedgefield Ratepayers’ & Voters’ Association v Government of the Republic of South Africa
1989 (2) SA 685 (C) at 701A.
activity. The combustion, emission of poisonous fumes , or explosion
contemplated in this core statement should be taken to denote serious
incidents which have the potential to cause impacts beyond the boundary of
the property in question. The categories laid down after the words "and
includes", that is, major hazard installations and " activities involving
dangerous and haz ardous substances that are controlled in terms of
national legislation " should be construed as refinements to the core
statement. Thus, the definition of "risk activity" should be construed such
that it contemplates operations or processes that tend to cr eate a risk of
serious incidents of combustion, emission of poisonous fumes or explosion,
and these operations or processes must either be "major hazard
installations" or controlled by legislation relating to dangerous or hazardous
substances.
81. The problem with the applicant’s interpretation is that it ventures into
rewriting the By -law rather than interpreting it. The separation of powers
doctrine precludes this court from rewriting a statute so blatantly in the
absence of a constitutional challenge.
82. The preceding discussion shows that there is no scope within the text,
context, and purpose of the By -law to limit the content of what a risk activity
entails in the way suggested by the applicant. The By -law, within the
framework of other relevant legislati on, contains its own limitations and
safeguards. In any event, when pressed on the issue counsel for the
applicant was unable to suggest how exactly the court – or the City - should
stipulate what the “outer limit” of a risk activity would be in every par ticular
context, and how it would practically be determined in applying the By -law.
The proposed threshold would be nebulous and vague, and would violate a
foundational constitutional value of the rule of law to which I have referred ,
namely that laws should be coherent, clear, stable, and practicable.58
namely that laws should be coherent, clear, stable, and practicable.58
83. I understand that the applicant is driven to advocate for this interpretation
58 Qwelane supra para 148.
because of the constraints he faces – both under the text of the By-law and
as a result of the evidence and concessions on reco rd - in his contention
that the first respondent’s LPG facility is unlawful, but his proposed
interpretation is, respectfully, patently without merit.
The regulatory framework for the safety of LPG facilities
84. The safety of these operations is regulated both under the DMS and other
applicable laws.
85. I have already referred to the requirement, in Item 124 of the DMS, of a risk
management plan i n respect of any use or ancillary activity that involves the
storage or keeping of hazardous substances that may result in an operation
being declared a major hazard installation . This applies even if the zoning
and development rules would otherwise permit the use or activity in question .
It is the mechanism through which the City, from a municipal planning
perspective, regulates safety concerns for the storage of hazardous
substances (and not by restricting such storage to RIzoned properties).59
86. The City’s Community Fire Safety By-law, 2002 (as amended) has numerous
provisions to ensure a fire -safe environment. These include various
stipulations for the storage of LPG, depending on the capacity of the
installation. The applicant contends that because the Fire Safety By -law
distinguishes between “bulk storage depots” and “small LPG installations” , so
too must the D MS. However, the provisions and concepts of the Fire Safety
By-law cannot merely be imported into the DMS so as to interpret the latter. 60
The Fire Safety By -law has its own specialised regulatory framework to
ensure the safety of installations such as ser vice stations. That framework is
separate from the Planning By -law's specialised municipal planning
framework. This does not detract from the applicability of the Fire Safety By-
59 During the most recent Item 124 notificatio n and publication process required by the City in
respect of the first respondent’s operation, interested parties were notified of the application.
Only the applicant filed an objection.
60 Independent Institute of Education (Pty) Ltd v KwaZulu -Natal Law Society and others 2020
(2) SA 325 (CC) paras 14-26.
-
law to the first respondent’s facility.
87. Section 36 of the Fire Safety By -law states in terms that “[n]otwithstanding
the provisions in either the Hazardous Substances Act or the Occupational
Health and Safety Act, this Chapter 61 regulates flammable substances in the
local government sphere so as to prevent and reduce fire hazards o r other
threatening dangers.” Thus, before constructing a new installation, or altering
an existing installation for the storage and use of a flammable substance, the
provisions of chapter 8 of the Fire Safety By -law had to be complied with. An
owner or person in charge of premises may not store or use a flammable gas
in excess of 100kg, or 200 litres of a flammable liquid of certain identified
danger group s unless he or she has obtained a flammable substance
certificate in terms of section 39 of the Fire Safety By-law.
88. This the first respondent did. The controlling officer, on behalf of the City,
issued a flammable substance certificate in relation to the property on 14
December 2020, permitting the storage and use of flammable substances in
terms of sect ion 38(1) of the Fire Safety By -law, in respect of LPG and
identified petrol and diesel.
89. Section 38(5) of the Fire Safety By -law empowers the controlling authority to
suspend or revoke an approval or a certificate where the usage is not in
accordance with the certificate, and 38(6) to issue an order to remove the
flammable substance or installation from premises where, in its opinion, the
flammable substance is stored or utilized for any process or in a manner
which is hazardous to life or property, or in circumstances where an
installation is unauthorised.
90. Under section 7(1)(b)(ii)(bb) of the NBR, the City must take into account
safety considerations when considering b uilding plan applications, and must
refuse an application unless it is satisfied that th e building will not be
61 That is, chapter 8.
dangerous to life or property. 62 In scrutinising such applications, the City
applies the South African National Standards 10087, which provide safety
and other standards for handling and storing LPG in domestic, commercial
and industrial installations.
91. These provisions all apply to the first respondent’s LPG facility, and constitute
a comprehensive framework for regulating safety , irrespective of the zoning
of the property in question.
92. According to the applicant, the respondents’ interpretation of the DMS would
allow “industrial scale LPG operations in public spaces with significant human
traffic, in multiple zones throughout the City - and without any clear rationale
rooted in the principles of good planning reflected in the DMS ”. From what is
set out above, this is plainly not so. Service stations are common throughout
the City. Even when they do not retail LPG , they contain large storage
facilities for hazardous substances such a s petroleum and diesel , and thus
entail a risk activ ity. As indicated, t hose facilities are subject to stringent
safety requirements. It is therefore acceptable for them to feature across
multiple zones and in public places with significant human traffic . There is no
reason why the first respondent’s facil ity should be treated differently . The
applicant, in fact, does not dispute that the property is well -located for a
service station and the retail supply of LPG.
93. The safety concerns that arise in respect of LPG installations therefore do not
require such installations, of whichever scale, to be restricted to RIzoned
properties.
94. The applicant nevertheless argues that the sale of LPG is lawful “so long as it
does not involve volumes that would render the cylinder LPG supply
operation a major hazard installation”.
62 Turnbull-Jackson v Hibiscus Coast Municipality and others 2014 (6) SA 592 (CC) par as 72-
95.
95. A major hazard installation is one defined in the OHSA63 as an installation
that “(a) where more than the prescribed quantity of any substance is or may
be kept, whether permanently or temporarily; or (b) where any substance is
produced, processed , used, handled or stored in such a form and quantity
that it has the potential to cause a major incident ”. A major incident, in turn is
“an occurrence of catastrophic proportions, resulting from the use of plant or
machinery, or from activities at a workplace”.
96. The DMS does not impose such limit. Whether an operation constitutes a
major hazard installation is not relevant to whether a land use permits the
sale of LPG , but the designation of a facility as a major hazard installation
would impose additiona l compliance duties. Section 39(2)(a) of the By -law
provides that an approval in terms of th e By-law “does not release anyone
from their duty to obtain any other authorisation required by ... another law,
and to comply with all laws ...”
97. In the first resp ondent’s case, when an amendment of the conditions of the
existing approval was sought in 2011 and again in 202 0, a risk consultant
was appointed to prepared risk assessment in terms of the relevant major
hazard installation (MHI) regulations at the time,64 as well as the SANS 1461:
2018 Codes of Practice. Petrol, diesel and LPG are all considered hazardous
substances as they are highly flammable. Although the proposed expansion
of the LPG storage in 2011 was from 1 to 5 tonnes, and therefore well below
the threshold of 25 tonnes for purposes of notification under the General
Machinery Regulations,65 petrol, diesel and LPG have the potential to cause
onsite and offsite incidents, which can only be determined by way of a
quantitative risk assessment. Under the MHI regulations, an assessment
must be undertaken every five years. In assessing a site, all toxic and
63 Section 1 of the OHSA, and see the Major Hazard Installation regulations, 2022 promulgated
under the OHSA, published under GN R2989 in Government Gazette 47970 of 31 January
2023, read with the explanatory note published under GenN 2841 in Government Gazette
51628 of 20 November 2024.
64 Published under R692 in Government Gazette 22506 (30 July 2001), promulgated under the
OHSA.
65 Published under R1521 in Government Gazette 11443 (5 August 1998): see regulation 9
read with Schedule A.
flammable products or substances are considered. The first respondent’s
operation is classified as a so-called “low hazard” MHI.
98. The applicant refers t o the first respondent’s LPG facility as one of “industrial
scale operations”. T he DMS does not distinguish between “industrial scale”
and lesser LPG operations – that much is clear from what has already been
discussed. In interpreting the By -law, this co urt cannot draw such a
distinction, as this would amount to impermissible legislating by a court .66
Where in any event would one, in interpreting the By -law, draw the line
between what is industrial scale and what not?
99. The DMS provides , in relation to ser vice stations, only that the activity in
question must be the retail of LPG. In the present case, the first respondent’s
facility significantly expanded its capacity from 5 tonnes to 42 tonnes
pursuant to the approval of the 2020 building plans. The expanded capacity
is, however, still aimed at retailing LPG, and therefore falls within the
parameters of the DMS. Even service stations that do not sell LPG contain
large storage facilities for hazardous substances such a s petroleum and
diesel, constituting a risk activity . There is no reason for distinguishing
between the storage of petroleum and diesel, on the one hand, and LPG, on
the other, and the DMS contains none.
Conclusion
100. In these circumstances, and on a proper interpretation of the By -law, the
consent use approval granted by the City to the first respondent to operate a
service station from its GB1-zoned property means that the first respondent is
permitted to retail LPG for vehicular and non -vehicular use . The first
respondent may lawfully do so i n respect of the quantities of LPG that can be
stored in the infrastructure built in accordance with the approved building
66 See Cbisuse supra para 48 : “ Judges must hesitate ‘to substitute what they regard as
66 See Cbisuse supra para 48 : “ Judges must hesitate ‘to substitute what they regard as
reasonable, sensi ble or businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between interpretation and legi slation’”
(referring to Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593
(SCA) para 18).
plans, and in compliance with other associated approvals.
101. The definition of “service station” has been amended expressly to provide for
the “sale of LP gas or similar fuel”. The amendment notwithstanding, the
storage and sale of LPG on the property was lawful prior to the 2025
amendments to the By -law. These activities remain lawful after 1 October
2025.
102. The applicant has failed to s how that the operation of infrastructure for the
storage and supply of LPG on the property is unlawful. He is therefore not
entitled to the declaratory relief sought.
103. It is common cause that the first respondent has, on the court’s
interpretation of the By-law, the necessary land use permissions to operate
infrastructure for the storage and supply of LPG on the property. Its
operations are not “manifestly unlawful”, as submitted by the applicant. The
applicant has therefore not established the requiremen ts for the grant of an
interdict.
Costs
104. The issue of costs remains.
105. The applicant accepts that he was not seeking to enforce a constitutional
right in launching the application. His concession is correct because neither
in his affidavits nor in his hea ds of argument does he assert a constitutional
right or challenge the constitutionality of any law or conduct. The applicant
nevertheless argues that the issues raised in this application are matters of
public interest and, in accordance with the socalle d Biowatch rule,67 no costs
67 Biowatch Trust v Registrar Gen etic Resources and others 2009 (6) SA 232 (CC) para 21:
“In Affordable Medicines this Court held that as a general rule in constitutional litigation, an
unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs ”.
See too Biowatch para 16: “ In my view it is not correct to begin the enquiry by a
characterisation of the parties. Rather, the starting point should be the nature of the issues.
Equal protection under the law requires that costs awards not be dependent on whether the
parties are acting in their own interests or in the public interest. Nor should they be
order should be made against him in relation to the City's68 costs.
106. He submits that the dispute as crystallized and ventilated regarding the
interpretation of the DMS does raise an issue of public importance with an
essential c onstitutional dimension. He was of the view that the City was
implementing the DMS in a manner that is contrary to the clear terms of the
DMS, nullifying the regime established for “risk activities”. Thus, the core
dispute concerned a question of principl e which would have ramifications for
the residents of Cape Town for so long as the contentious provisions of the
DMS remain in operation. The challenge goes directly to the lawfulness of
the manner in which the City is administering the DMS, which amounts to an
exercise of public power.
107. The applicant refers to Harrielall v University of KwaZulu-Natal,69 in which the
Constitutional Court held that the Biowatch principle found application in the
context of an unsuccessful review in terms of the Promotion of Administrative
Justice Act 3 of 2000 because (among other reasons) it concerned an
exercise of public power . The applicant relies on the following extract from
the case:
“[17] The constitutional issues raised by the case are two -fold. First, a review of
administrative action under PAJA constitutes a constitutional issue. This is so
because PAJA was passed specifically to give effect to administrative justice rights
guaranteed by section 33 of the Constitution. Moreover, when the University
determined the application for admission, it exercised a public power.
[18] According to jurisprudence of this Court, the review of the exercise of public
power is now controlled by the Constitution and legislation enacted to give effect to
determined by whether the parties are financially well endowed or indigent or, as in the case
of many NGOs, reliant on external funding. The primary consideration i n constitutional
of many NGOs, reliant on external funding. The primary consideration i n constitutional
litigation must be the way in which a costs order would hinder or promote the advancement
of constitutional justice.”
68 The Constitutional Court has endorsed the view that the Biowatch rule would not apply to an
applicant in a review appl ication as regards the costs incurred by an opposing respondent
who is a private party: see Independent Community Pharmacy Association v Clicks Group
Ltd 2023 (6) BCLR 617 (CC) para 306.
69 2018 (1) BCLR 12 (CC) paras 17-18. The applicant also refers to Norkie v Public Protector
and another [2024] ZAWCHC 36 (13 February 2024) para 37 , which entailed a legality
review.
it. It is not controversial th at a review of administrative action amounts to a
constitutional issue.”
108. The applicant thus contends that the Biowatch principle may in appropriate
cases find general application where an applicant advances a challenge to an
exercise of public power, as he says that he has done.
109. The problem for the applicant is that he never did challenge the City's
administrative action. He did not seek any review relief. 70 On the contrary,
his founding affidavit confirms that “no relief is sought against the City ”, and
none of his affidavits allege that any aspect of the City's administration of the
DMS is unlawful. His attack was based purely on his interpretation of the
DMS. What is plain throughout every iteration of the applicant’s case as the
litigation progressed, is that he remained focused on the interpretation of the
impugned provisions of the By -law. The court’s determination of the correct
interpretation of a statute is not an administrative action , and the in terpretive
task does not entail the exercise of public power by the City.
110. The applicant’s reliance on Harrielall is thus misplaced because his
application is not one for judicial review. 71 In any event, in Harrielall the
Constitutional Court found that the litigation dealt with constitutional issues for
two reasons. The first was that the case was a review of administrative action
under PAJA, which is a constitutional issue since it gives effect to the right to
administrative justice under s ection 33 of the Constitution , and the review of
the exercise of public power is controlled by the Constitution. The s econd
reason was that the applicant sought to protect her fundamental right of
access to further education under section 29(1)(b) of the Constitution. 72 The
70 In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others
2004 (4) SA 490 (CC) the Constitutional Court remarked at para 25 that in a challenge to
2004 (4) SA 490 (CC) the Constitutional Court remarked at para 25 that in a challenge to
administrative action, PAJA is of application and the case cannot be decided without
reference to it.
71 Norkie, in turn, simply reiterates that the Biowatch rule applies to applications for judicial
review. In Norkie, the Court declined to award costs against the applicant because he was
not a lawyer, had drafted the papers himself, and appeared in person at the hearing. The
applicant suffers from no such handicaps. He is an attorney himself, and has at all times
been represented by both other attorneys and counsel.
72 Harrielall supra para 19.
applicant’s case does not stand on either of these two legs.
111. That leaves the applicant’s claim (raised only in relation to costs) that the
application was brought in the public interest. The first respondent initially
challenged the applicant’s locus standi but, given the narrowing of the issues,
it was not necessary to determine this aspect. Nevertheless, a s the City
pointed out, whether the litigation is in the public interest is not the test under
Biowatch. The applicant did not assert public interest standing, and his
arguments do not purport to protect the public interest.
112. To establish that a case is brought in the public interest, a court must be
satisfied that the applicant in question is “genuinely acting in the public
interest”.73 This can only be established if sufficient facts in respect of the
various considerations that pertain to “genuine public interest” have been
proven, or are at least alleged and undisputed. These facts would need to
pertain to, among other things, the nature of the relief sought, whether there
is another reasonabl e manner in which the challenge could have been
brought, the range of persons who could be affected by the court's order, the
possible benefit of the litigation to the public at large, whether the applicant
has a pecuniary interest in the ligation , and the opportunity that affected
persons have had to put forward evidence and argument.
113. The applicant did not make out any case in this respect. On the contrary, it is
clear that the applicant litigated in his own interest. These proceedings
should therefore not be treated as public interest litigation.74
114. In National Home Builders Registration Council v Xantha Properties 18 (Pty)
Ltd75 the Supreme Court of Appeal held as follows:
“[26] The general rule laid down in Biowatch applies in constitutional matters
73 Lawyers for Human Rights and another v Minister of Home Affairs and another 2004 (4) SA
125 (CC) paras 14-18.
125 (CC) paras 14-18.
74 See Giant Concerts CC v Rinaldo Investments (Pty) Ltd an d others 2013 (3) BCLR 251 (CC)
para 31.
75 2019 (5) SA 424 (SCA) paras 26 -27. See also Bo-Kaap Civic and Ratepayers ’ Association v
City of Cape Town [2020] 2 All SA 330 (SCA) paras 82-86.
involving organs of state, and operates to shield unsuccessful litigants from paying
costs to the State in order ‘to prevent the chilling effect that adverse costs orders
might have on litigants seeking to assert constitutional rights’. But as has previously
been stressed, the mere labelling of litigation as ‘constitutional’ is insufficient. For the
rule to apply the issues should be genuine and substantive and raise constitutional
considerations relevant to their adjudication. The rule thus does not mean ‘ris k-free
constitutional litigation and a court in the exercise of its discretion must consider the
scope and character of the litigation.
[27] In the present case, the respondent sought a declaratory order freeing it from
the obligation to pay a substantia l sum of money. The litigation has, in truth, been
nothing more than a commercial dispute in which the respondent sought to evade
the clear provisions of the Act. Constitutional considerations played no part and I see
no reason for the respondent not to bear the costs of the proceedings.”
115. I have alluded to the first respondent’s allegations that the applicant instituted
the litigation to stifle competition. In the applicant’s heads of argument these
allegations are labelled vexatious and unfounded . A str iking-out application
was threatened but did not materialise . The applicant himself claims to be
motivated by protecting his personal property interests: he states that he
brings this application because he is a resident of Melkbosstrand who lives in
close proximity to the first respondent’s LPG facility, and because he has a
“business engaged in the wholesale distribution of liquefied petroleum gas”.
116. It appears from the papers that the applicant has an interest in, and is
involved in the operations of , a wholesale LPG business, Easishoppe (Pty)
Ltd. On the applicant’s own interpretation of the DMS, Easishoppe engages
in a “risk activity” contrary to section 35(2) of the By -law. It is uncontested on
in a “risk activity” contrary to section 35(2) of the By -law. It is uncontested on
the papers that Easishoppe is not a service station, a nd its premises are not
zoned RI. The first respondent’s allegations to the effect that under the 2022
MHI regulations all sites on which LPG in excess of 20 tonnes is stored are
classified as major hazard installations, and that the applicant’s own LPG
retail facility in Montague Gardens qualifies as a MHI under the new
regulations, are similarly uncontradicted. On the papers, Easishoppe itself
does not comply with the applicant’s interpretation of the DMS.
117. On the first respondent's version, this litigation has been an attempt to thwart
a competitor. Either way, the applicant’s arguments, which aim to restrict the
retail of LPG to remote and inaccessible areas, are contrary to the public
interest, and harmful to sensible spatial planning. The applicant has given no
consideration at all to, for example, the impact of the relief sought on other
service stations and LPG facilities in Cape Town, as well as other institutions,
such as hospitals, that have large LPG installations.
118. In these circumstances, the applicant does not qualify for Biowatch
protection. As indicated in Biowatch76 itself:
“[24] … the general approach of this Court to costs in litigation between private
parties and the state, is not unqualified. If an application is frivolous or vexatious , or
in any other way manifestly inappropriate, the applicant should not expect that the
worthiness of its cause will immunise it against an adverse costs
award. Nevertheless, for the reasons given above, courts should not lightly turn their
backs on the g eneral approach of not awarding costs against an unsuccessful
litigant in proceedings against the state, where matters of genuine constitutional
import arise. Similarly, particularly powerful reasons must exist for a court not to
award costs against the st ate in favour of a private litigant who achieves substantial
success in proceedings brought against it.
[25] Merely labeling the litigation as constitutional and dragging in specious
references to sections of the Constitution would, of course, not be enoug h in itself to
invoke the general rule as referred to in Affordable Medicines. The issues must be
genuine and substantive, and truly raise constitutional considerations relevant to the
adjudication. …”
119. I have mentioned that the applicant’s case shifted as the litigation
progressed. The applicant is not a layperson. He is a qualified attorney, and
progressed. The applicant is not a layperson. He is a qualified attorney, and
states that he has “been primarily engaged as a regulatory/legal consultant to
LPG dealers and distributors in and around Cape Town for the last 12 years.
As such, [he is] thoroughly acquainted with the structure and regulation of the
industry.” The manner in which he has conducted this litigation is, however,
76 At paras 24-25.
far from satisfactory.
120. The applicant’s case in his founding papers was that the only land use
permitted for the operation of the LPG facility is RI, precisely because the
activity is a risk activity. In his replying affidavit and in his first set of heads of
argument he argued for the first time that the LPG facility ’s status as a MHI
triggered the requ irement of a rezoning. Th e question framed at this stage
was “[o]n a proper construction, does the City of Cape Town’s Development
Management Scheme permit the operation of a facility of the nature and
scale of the one in issue on a property that is not zo ned ‘risk industry’?”
Then, in response to the explanatory affidavit delivered by the City, the
applicant attempts to have it both ways. He admits that a service station is a
risk activity, but argue that a “correct” interpretation of “service station ”
understood in the context of a “more liberal ” policy regime for this use
resolves the issue.
121. Whilst the applicant initially accepted material aspects of the City's
interpretation of the DMS , he later reverted to his contention that all risk
activities are limited to properties with RI zoning. His answer to the City's
explanatory affidavit introduced the submissions that service stations may not
have bulk LPG storage facilities or retail LPG to anyone other than vehicle
operators. N either of these argument s had been foreshadowed in his
founding or replying affidavits, and the City had to deliver a further affidavit to
deal with this new material.
122. In his heads of argument, the applicant effectively ignores his earlier
concession that risk activities are permitted across multiple zonings under the
By-Law, including GB1. His a ffidavits, however, constituted not only his
evidence but also his pleading s, and the concession on affidavit regarding
risk activities therefore took that issue out of contestation betwe en the
risk activities therefore took that issue out of contestation betwe en the
parties.77 The City , utilising public funds, was nevertheless required to
present argument on the issue, as well as on the new argument raised on the
77 Molusi and others v Voges NO and others 2016 (3) SA 370 (CC) paras 27-28.
eve of the hearing to the effect that the court should, through an act of
interpretation, introduce a new threshold of materiality into the DMS. This
contention had not been foreshadowed on the papers , but was in any event
without merit, as indicated earlier in this judgment.
123. In Endangered Wildlife Trust and another v DG (Acting) Department of Water
and Sanitation and another 78 the S upreme Court of Appeal dealt with the
considerations regarding the need to safeguard scarce judicial resources and
public funds where Biowatch does not apply:
“[126] There are further considerations that justify a costs awa rd against the
appellants. The respondents ask for an order that the appellants pay the costs
incurred in the High Court and on appeal. The DG's costs are paid out of public
funds, ultimately by taxpayers. In addition to an unmeritorious appeal and the vex ing
of the second respondent, scarce and valuable judicial resources have been wasted
on a misconceived appeal, to the detriment of other litigants with cases which have
real merit. All of this, in the specific circumstances of this case, constitute an abu se
of the court process. Judicial resources in this country are barely sufficient to afford
justice without unreasonable delay in deserving cases, and should not be wasted on
misconceived litigation....”
124. There is , in the circumstances, no reason why th e n ormal rule as to costs
should not be followed, namely that costs should follow the event in relation
to the costs of both respondents . The first respondent sought attorney -client
costs, but I am not inclined to grant punitive costs.
125. In the exercise of my discretion, I am of the view that counsel’s fees should
be taxed on Scale C as contemplated in Rule 67A 79 of the Uniform Rules of
Court. The costs of two counsel, in relation to the City, was justified. The
DMS is a complex legal instrument. The City had to explain not only how the
DMS is a complex legal instrument. The City had to explain not only how the
various provisions of the DMS intersect, but also the justifications underlying
the By-law's regulatory approach and policy choices, and the content, import
78 [2025] ZASCA 69 (29 May 2025) para 126. My emphasis.
79 Which applies to work done after 12 April 2024.
and function of various other legal regimes that regulate service stat ions.
The shifting sands of the applicant’s arguments complicated this task.
Order
126. In the premises, the application is dismissed, with costs, including the costs
of two counsel in relation to the City. Counsel’s fees are to be taxed on Scale
C.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant: Ms J. Blomkamp
Instructed by: Chris Fick & Associates Attorneys
For the first respondent: Ms L. A. de la Hunt
Instructed by: L Truter & Associates Inc. Attorneys
For the second respondent: Mr R. Paschke SC and Mr A. Pillay
Instructed by: Fairbridges Wertheim Becker Attorneys