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[2023] ZAWCHC 289
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LJ Turnkey Investments (Pty) Limited v Stellenbosch Municipality (16450/2019) [2023] ZAWCHC 289 (31 October 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: 16450/2019
Revised
In
the matter between:
LJ
TURNKEY INVESTMENTS (PTY) LIMITED
Applicant
and
STELLENBOSCH
MUNICIPALITY
Respondent
JUDGMENT
KUSEVITSKY
J
Introduction
[1]
This application
relates to a dispute regarding the lawful utilisation of Portion 9 (a
portion
of
Portion
1)
of
the
Farm
Verblyf
Der
Gelukzaligen
No
100,
Municipality and
Division of Stellenbosch ("the property"). The Applicant,
the owner of the property, seeks declaratory
relief in terms of the
land use of the property. The Respondent by way of a
counter-application, seeks both declaratory and interdictory
relief.
[2]
Pursuant
to
the
filing
of
the
answering
affidavit,
the
Applicant
amended
its notice of motion.
Initially,
the
relief
sought
was directed
at
seeking
declaratory
relief relating to
the use of the property, namely seeking: (a) a declaration that it
was being utilised for
'residential
purposes';
and
(b) a declaration that certain zoning certificates have no legal
status and do not bind the Applicant. In terms of the amended
notice
of motion, the Applicant additionally seeks a declaratory order that
the zoning of the property was
'undetermined'
for the
periods as specified.
[3]
In the
counter-application, the Respondent seeks an order: (a) declaring
that the property is zoned Agricultural and Rural (use
as
contemplated in Chapter 20 of Stellenbosch Municipality Zoning Scheme
By-law, 2019 ("the Zoning Scheme By­ law'').
It also seeks
further interdictory relief by
inter
alia
interdicting
the Applicant from
utilizing the property for student and/or any other rental
accommodation in contravention
of
the provisions of Chapter 20 of the Zoning Scheme By-Law.
[4]
In order to
contextualise the legislative framework, it is necessary to detail
the use of the property from its designated inception.
The
background
(i)
1955-1986
[5]
During 1955, the
Divisional Council of Stellenbosch ("the Divisional Council")
was vested with authority to approve the
sub-division of,
inter
alia,
agricultural
land in the Stellenbosch
area.
The Respondent
is the
successor-in-title of
the
Divisional Council as
far as the Stellenbosch municipal area is concerned.
[6]
Prior to 1955, the
property formed part of Farm 100, Stellenbosch, then known as Farm
Knoweside. According to the Applicant, during
the first half of 1955,
application was made to the Divisional Council on behalf of the then
owner of Farm Knoweside, for permission
to sub-divide the farm
whereby a portion of approximately half a hectare in size was to be
registered as a separate portion to
be known as
"Verblyf
der Gelukzaligen"
.
[7]
The Divisional
Council approved the sub-division on 2 June 1955 and inserted the
following conditions:
"1.
The land may not
be subdivided without the written approval of the controlling
authority
as
defined in
Act No. 21 of 1940.
2.
The land shall be
used for residential and agricultural purposes only and no store or
other place of business or industry whatsoever
may be opened or
conducted on the land without the written approval of the controlling
authority
as
defined
in Act No. 21 of
1940.
3.
No building or
structure whatsoever
shall
be erected on the land without the written approval of the
controlling authority
as
defined in
Act No. 21 of 1940."
[8]
When
the
Divisional
Council
approved
the
subdivision
on
2
June 1955,
the following
condition was inserted into the Deed of Transfer:
"The
Board agreed that this smaller area be approved
as
a
minor
subdivision in view of the fact that it is to be used by the
Salvation Army for the purpose of establishing a retreat for
European
Women Alcoholics, and will be controlled in terms of Act 21 1940':
[9]
On 23 September 1955,
pursuant to the subdivision approval, the property was transferred to
the Salvation Army Property Company
("the Salvation Army''). The
Applicant
states
that pursuant to the subdivision, the Salvation Army became entitled
to utilise the property for residential purposes and
that the right
was recorded in the aforementioned conditions.
The property is just
over half a hectare in size and a number of buildings and hostels
were erected on the property over the years.
The hostel on the
property now serves as residence for students and homeless people.
The Applicant avers that the property has
been utilised for
residential purposes, and that the property has not been utilised for
agricultural
purposes
at all, given the size of the property and the fact that the
aforementioned buildings were erected thereon.
[10]
On 1 July 1986, the Applicant purchased the property from the
Salvation Army and became the registered owner.
It argues that the
condition in terms of which the Salvation Army was entitled to
utilise the property for residential purposes
was transferred to the
Applicant's title deed and that it is, too, entitled to utilise the
property for residential purposes.
[11]
The Respondent on the
other hand argues that this is not the case. They state that it is
clear from the approvals
that
the intention of the subdivision was not to divest the property of
its agricultural zoning. They argue that the sub-division
was for a
specific purpose, since it is common cause that the Salvation Army is
a charitable, non-profit organisation and that
a specific purpose
that was meant to be achieved by the sub-division was the charitable
lodging and rehabilitation of the alcoholic
women by the Salvation
Army. Thus, they argue, the word
'residential'
was not
meant to be a normal dwelling house, but rather a rehabilitation
facility. They also argue that the further restrictions
that
'no
store or other place of business or industry whatsoever may be opened
or conducted on the land without the written approval"
must
also be seen in this light. They contend that it was never the
intention that the property be used, as it is currently being
used,
as student lodgings for commercial gain.
[12]
The zoning of the
property during the specific time periods is of relevance. In 1955,
when the property was created by sub-division,
the Township
Ordinance, No. 33 of 1934, was in force. It
inter
alia,
distinguished
between two types of land, that being urban and rural land
respectively;
the
Township
Ordinance
of 1934 provided for the establishment
of town planning
schemes for local authorities and did not
apply to rural land;
the 1934 Township Ordinance did not, as far as rural land was
concerned,
provide
for any of the following:
1.1.1.
categories of
residential use;
1.1.2.
restrictions to
residential use; or
1.1.3.
conditional
residential use, for instance, residential use on condition that such
use was only allowed for
'the
rehabilitation of European women alcoholics';
and
1.1.4.
until 1 July 1986,
the use of the property in question was regulated and managed by
means of the conditions set out in
its title deed which
entitled the Salvation Army to use the land for residential purposes.
(ii)
1 July 1986
(Land Use Planning
Ordinance
15 of 1985)
[13]
On 1 July 1986 the
Land Use Planning Ordinance 15 of 1985 ("LUPO") came into
effect.
The
property
fell
within
the
ambit
of
the
Section
8
zoning
scheme regulations.
It was contended that in terms of section 14(1) of LUPO, the local
authority was required to make a factual
determination regarding the
utilisation of the relevant property. Section 14(1) provides the
following:
"14(1)
With effect from the date of commencement of this Ordinance all land
referred to in section 8 shall be deemed to be
zoned in accordance
with the utilisation thereof, as determined by the council
concerned."
[14]
In terms of section
14(3) of LUPO, once the use has been factually determined,
the local authority
grants a zoning "permitting
of the utilisation of
the land concerned", which is the "most restrictive
zoning".
[15]
The
Stellenbosch
Local
Municipality
-
Land
Use
Planning
By-law,
2015
[1]
provides in section 13 thereof, for the determination of zoning by
the Respondent. Section 13 (2) of the By-law states the following:
'when
the municipality considers an application in terms of sub-section
(1), it must have regard to the following –
(a)
the lawful
utilization of land, or the purpose for which it could be lawfully
utilised immediately before the commencement of the
Land Use Planning
Act if it can be determined'.
[16]
The
Applicant contends that on 1 July 1986, the property was utilised for
residential purposes and, in terms of section 14(1) of
LUPO, it was
determined to be zoned residential. The Respondent, on the other hand
contends that in 1991, when the Salvation
Army
made a building plan application
for
the construction
of
ablution facilities,
a
determination
[2]
was
made in terms of
section
14 of LUPO that the zoning was agricultural. This decision has not
been challenged.
[17]
The Applicant argues
that on 20 October 2015, the property was lawfully utilised for
residential purposes and, if an application
in terms of section 13(2)
of the Land Use Planning By-law had been made to the Respondent, it
would have been bound, by statute,
to have regard to the fact that
the property was lawfully utilised for residential purposes. It is
common cause that the Applicant
never made such an application at
that time. The Respondent
in
its answering affidavit contends that
when LUPO commenced,
the Salvation Army did not approach the Respondent for a
determination
of
the zoning of the property pursuant to section 14 of LUPO and states
that presumably no such determination
was made because
there was no
issue
with the zoning and the use of the property. They state therefore
that the land accordingly had no
'deemed
zoning'
under
section 14(1) and remained zoned for agricultural use as contemplated
in the Section 8 Zoning Scheme Regulations, as it had
been merely
developed with a dwelling house and associated outbuilding in
conformation with what was allowed on agricultural land
in terms of
the zoning scheme.
Was
a determination made?
[18]
I do not think that
it can be disputed that the zoning of the property will determine
whether the Applicant and the Respondent in
its counter-application,
is entitled to the relief that it seeks.
Central to this
question is whether
a
determination in terms of section 14 of LUPO was made or not. To
re-cap, the Applicant contends that the sole factual dispute
is
whether the predecessor-in-title of the Applicant, i.e. The Salvation
Army, on a date or dates not identified by the Respondent,
applied to
the
Respondent,
or
its
predecessor-in-title
for
a
determination
of
the
zoning
of
the property in tenns
of section 14 of LUPO. This is in tenns of the amended notice of
motion. The Respondent has taken issue with
this relief, contending
that initially, it was the Applicant's case that it sought a
declarator in tenns of the land-use and now
its case has morphed, in
reply, seeking relief in tenns of the zoning of the property. I will
return to this aspect in due course.
[19]
Much was made in
argument as to whether the 'determination' made by the Respondent and
the Respondent's predecessor-in-title amounted
to a decision for
purposes of administrative action which would make it susceptible to
review proceedings, either under review
under the common law or under
the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").
The Applicant argued that
the Respondent purposefully
in its papers ensured
that the word 'determination' was used in order to bring it in line
with the provisions of section 14(1) of
LUPO which, as stated before,
provides that all land shall be deemed zoned in accordance with their
utilization, as
determined
by the
Council. The Applicant argues that these determinations taken in
1991, 2011 and 2018, on Respondent's version, could not
trigger
proceedings
under
PAJA because PAJA does not operate retrospectively. The Applicant
argues that the contention by the Respondent that a 'granting'
was
done subsequently, does not
prove
that a
granting was done because, so it was argued, no evidence was provided
to indicate that it amounted to a granting.
[20]
During 1986, the
Salvation Army applied to the Divisional Council for building plan
approval
for
the
construction
of
a
garage
on
the
property.
In
1991,
a
further building plan
application was brought to the Divisional Council for the
construction of ablution
facilities.
The
application
was
approved
in a
letter
of
approval
which
I
will deal with more
fully hereunder. The Respondent says that it is clear that the
Divisional Council made a determination of the
zoning of the property
under section 14 of LUPO at that stage,
as the first page of
the letter of recommendation reflects the zoning of the land to be
"Landbousone
I ingevolge
Artikel 14 van Ordonnansie 15 van 1985."
[21]
They
also
contend
that
PAJA
would
not
have
been
applicable
for
the
said periods in 2011
and 2018 because PAJA is not retrospective. In 1991, there was no
PAJA. They also contend that for a review
to be triggered, there
needs to be knowledge of the decision. They aver that there is no
evidence to support this allegation. Finally,
it was argued at the
hearing that on Respondent's version, a determination is not
administrative action and therefore not reviewable.
They finally
contend that they cannot contest a zoning that does not exist. I am
not in agreement with these contentions for the
reasons that follow.
[22]
First
of all, the rules relating to making out a case in reply is trite.
[3]
In casu, the Applicant's case has manifestly diverged from its
initial relief in its notice of motion. The Applicant's founding

affidavit
is
devoid of any evidence to support the relief that it seeks. Then, it
sought to cure this defect by filing an amended notice of
motion and
thereafter, impermissibly in my view,
filed
a consolidated affidavit as a replying affidavit in the main
application and an answering affidavit in the counter-application.
As
I have stated, none of the relief that it seeks is found in the
founding affidavit and it does not behove an applicant to attempt
to
bolster
a
deficient case in reply and in its heads of argument.
In
this matter however,
the
Applicant
has
amended
its
notice of motion to reflect the additional relief. A court naturally
has a discretion as to whether to permit such conduct if
it is in the
interest of justice to do so and if the granting of a cost order
against such a party might alleviate the prejudice
suffered by the
opposing side.
[23]
I
am
of the view that the Applicant's
arguments
are
not sustainable.
A
decision making body or authority who exercises its functions in
terms of the powers granted to it, makes a decision, whether
one
chooses to call it a decision or determination. And it it trite that
any decision or determination made by such a statutory
authority is
susceptible to an appeal, either in terms of its internal appeal
processes within that regulatory framework, or in
terms of PAJA. It
would be an absurd proposition to suggest that decisions made,
whether one chooses to call it a determination,
is not
a
decision.
This
view
is
supported
by
the dictionary
definitions
of the word
'determinations'
and
'determine'
in
the Concise Oxford
English
Dictionary, being the "process of determining something; cause
to occur in a particular way; be the decisive factor
in". The
court of Appeal in
Martins
v De Waal and Others
1963
(3) SA 788
[4]
held
that the word 'determination' should be interpreted in its widest
sense, relying on the Afrikaans dictionary definition of
the word
'vestelling'
in
Krizinger and Steyn's
Groot
Woordeboek,
7
th
ed.,
and the·meaning assigned thereto being the following:
"establishment, fixation; proof and 'provision
and
declaration."
[24]
The
Respondent contends that between 1955 and 2019, the Respondent made
various
administrative
decisions
relating
to
the property
to
the effect
that
it
is
zoned
as agricultural land. It argues that none of the decisions have ever
been challenged and neither has Respondent challenged
it now. The
Respondent asserts, correctly, that every administrative decision,
even unlawful ones, have
consequences
until
set aside by a court under review.
[5]
They argue that the
Oudekraal
principle
is fatal to the relief sought by the Applicant. The Respondent lastly
contends that, over and above the aforementioned
deficiencies in the
Applicant's papers, that the Applicant furthermore does not challenge
the empowering provisions and therefore
the legal scheme as it stands
must be applied. Finally, that because declaratory relief is
discretionary in nature, it must under
the circumstances
be
refused because of the Applicant's failure to invoke the provisions
of PAJA and has continued to act in disregard of the Respondent's

constitutional rights to regulate planning matters in its
jurisdiction by ignoring the legal scheme.
Evaluation
[25]
In
1991, the Salvation Army knew that in terms of the title deed
conditions and restrictions, that it needed to apply to the
Respondent
for a departure or exemption from those conditions. The
letter of exemption was followed by the application on the prescribed
form
to the Western Cape Regional Services Council: Stellenbosch
Office.
On the application
form,
the Salvation
Army
records the details of the property as Farm/Erf 100/9 situate in
Klapmuts Road, Stellenbosch. Under the heading 'General Information',

the type of building is recorded as an 'addition' and more
importantly,
the
following
question
and
answer
posed
is
the
following:
'Is
building
for bona fide
farming
purposes?
Yes'
[6]
.
In
the letter of reply by the Divisional Council for Stellenbosch dated
30 July 1991, the description of the property is designated
as a
farm,
i.e.
'Plaas 100/9 Stellenbosch'. The zoning of the farm is also deemed
as
Agricultural.
[7]
The
letter lists the reason for the application,
stating
that
the Salvation Army requests the construction of outbuildings to house
toilets for their staff and that the proposed building
will encroach
the 30m building line exclusion
from
the boundary of the
farm.
The
Motivation records that because of the existing buildings on the
farm, the proposed new structure cannot be built in another
position
on the farm. The approval granted on 12 September 1991 was only in
respect of the departure of the designated building
line.
Importantly, the caveat to the approval stated that the approval of
the departure was not a general waiver of the existing
conditions
precedent.
[8]
The Afrikaans
provision states as follows:
'1.
Die goedkeuring moet geag word slegs die afwyking te dek'
[26]
It is therefore
evident that on this basis alone, the Respondent's predecessor­
in-title had made a determination as to the
land use of the property.
It is also evident, factually, that at this point, both parties, i.e.
the Salvation Army and the Stellenbosch
Council was
ad
idem
that
the property
was
designated and zoned as 'agricultural'. It is clear that at the very
least, the decisions of 2011 and 2018 fell within the ambit
of PAJA.
[27]
I
am also not persuaded that the Applicant's selective reading of the
condition in the title deed citing 'residential purposes'
is
sufficient to augment a conclusion that the property is zoned as
'residential'. If one has regard merely to the 1991 Letter
of
authorization, it is clear that the property contained buildings and
outbuildings. In terms of the provision, this is where
the initial
rehabilitation facility was housed and the provision inserted to
reflect that it could be utilised for 'residential
purposes.' The
Applicant however selectively ignores the remainder of the
prohibitory condition
which
states that
'no
store or other place of business or industry whatsoever may be opened
or conducted on the land without the written approval
of the
controlling authority
as
defined
in
Act 21 of 1940.'
It
is
trite that Statutes
must
be
interpreted with due regard to their purpose and must understood
holistically. This however does not mean that ordinary meaning
and
clear language may be disregarded, for interpretation is not
divination and courts must respect the separation of powers
when
construing Acts of Parliament.
[9]
[28]
Therefore, such as was the
case before, the Applicant has to apply for a departure or removal of
the restriction and gain permission
and approval from the Respondent
to run its student accommodation business for profit.
The Salvation Army
was given an entitlement to use the property for residential purposes
within a specific context and the right
to use the residential
component attaching to agricultural land has not disappeared.
It most certainly
does not behove the
Applicant
to by-pass the regulatory provisions governing the property and it is
most certainly not the function of a court to usurp
the function of
decision-making institutions.
This finding
therefore
also put paid to the
relief claimed
in
the amended
notice
of motion that the zoning
of
the
property
was
'un-determined'.
As I have found, it is clear that a determination has been made that
the property is zoned as 'agricultural.'
[29]
I am therefore in
agreement with the Respondent that failing a challenge to this
determination of the property, that the Applicant's
relief in terms
of a declaratory order must fail.
Zoning
Certificates
[33]
The
final relief
claimed
by
the
Applicant
is
the declaration
that
the
zoning certificates
have no legal status; are not determinative of Applicant's rights; do
not constitute a certification of the
zoning applicable to the
property; and do not bind the Applicant.
(iii)
2011 -
2015
[34]
In
the founding affidavit, the Applicant makes two contentions.
It
states that on or about 11 December 2018, the Directorate:
Planning
and Economic Development of the Respondent generated or issued a
document bearing the heading 'Zoning Certificate' purportedly
in
respect of the property. In the document, the Applicant contends that
the primary use of the property is indicated to be 'agricultural'

with no reference to the fact that the Applicant
is
entitled to, and in fact utilises the property for residential
purposes. A second letter was similarly produced on 9 April 2019
indicating
the primary use as Agriculture, with consent use for various land
uses allowed
[10]
with the
consent of the Council.
[35]
On the Applicant's
version alone on this aspect, it is quite apparent that approval was
sought and granted for the departure of
the initial restriction that
'no store
or other business or industry whatsoever may be conducted or opened
without the written approval of the controlling authority',
since
the
various land use
listed now includes the operation of a farm stall and farm store,
service trade and tourist facilities.
[36]
The Respondent
states that in 2011,
the Salvation Army approached the Respondent and sought confirmation
of the zoning of the property. On 7 October
2011, the Respondent
issued the zoning certificate to remain agricultural, confirming the
1991 position. This decision was not
challenged by the Salvation
Army. The Salvation Army again approached the Respondent during 2015.
The Respondent states that as
no application for the change in land
use had been submitted, the Respondent did not have to reassess its
initial determination
and on 23 September 2015, it issued another
zoning certificate confirming the existing zoning of the property as
Agriculture 1.
The Respondent argues that the Salvation Army knew
precisely what rights were attached to the property when it sold the
land to
the Applicant less than a year later. It contends that no
rezoning applications have ever been lodged with the Respondent and
therefore
the zoning of the property has remained.
[37]
The objective facts
in this regard is that since the inception of LUPO, the property has
been determined
as
being agricultural on no less than three occasions. The argument
belatedly presented by the Applicant in its replying affidavit
to the
effect that its rights disappeared at some undisclosed date is
without merit. So too is the relief claimed to the extent
that it
seeks this court to make a declaration
that those
certificates are not legally binding on the Applicant. The Respondent
in its answering
affidavit stated that the certificate in itself has no legal effect
and that it is merely
prima
facie
evidence
of the underlying decision -
the
determination of the use of the property and the resultant zoning
thereof, which constitutes administrative action. The Respondent
does
not dispute that the certificate itself has no binding legal status
and has never disputed same. This is why it contends that
the relief
sought in paragraph 3 of the notice of motion was unnecessary.
[38]
I am in agreement
with the Respondent's contention that the zoning certificates are
prima facie
proof of
the existence of underlying administrative action taken either by
Divisional Council or by the Respondent.
Respondent's
Counter
-
application
[39]
Finally, turning to
the counter-application of the Respondent. In the notice of motion,
the Respondent
inter
alia
seeks
an order, declaring the property is zoned for Agricultural and Rural
use as contemplated in Chapter 20 of the Respondent's
Zoning Scheme
By-Law; interdicting and restraining the Applicant from utilising the
property for student and/or any other accommodation
in contravention of
the provisions of Chapter 20 of the By-law; directing the demolition
of the shade ports on
the
property to the extent that they cannot be regularised so as to
comply with the requisite building regulations, Municipal by-laws
and
zoning scheme by-laws and finally an interdict prohibiting the
Applicant from occupying or using the garage for the purposes
of
accommodation
until
such time as the requisite building plans and approvals therefore
have been granted in accordance with the relevant legislation.
[40]
It
was conceded during the hearing of the matter that the Applicant's
has complied with the certain of the relief claimed notably
prayers
3,
5 and 6 of the notion of motion. In Respondent's heads of argument,
it is only prayers 1, 2 and 4.2 that needs adjudication.
[11]
[41]
The main contentions
are the following. In 2016 the Applicant purchased the property for
R1.5 million. The zoning was therefore
already determined before
purchase. At no stage has any party made application for a rezoning
of the property. Since 2013 the Respondent
has, in terms of the
Municipal Property Rates Act 6 of 2004, valued the property as
Agricultural. No objections have been made
to the valuations. In
2018, when the Respondent received a complaint that the Applicant was
using the property as student housing,
two warning notices were
issued.
[42]
On 7 June 2019, the
Respondent states that the Applicant was advised by its then
attorneys that it should bring a PAJA review. This
contention is
however not entirely correct. What is apparent
is that on 7 June
2019, STBB Somerset
West
wrote a memorandum on the issue of the zoning certificate. This
memorandum was sent
to
the
Respondent
on
the
Applicant's
behalf
when
the
Applicant
ostensibly
attempted
to persuade the Respondent to change the zoning of the property. The
memorandum suggested two alternatives. One of the
alternatives was
for Respondent
to
withdraw the certificate and substitute
it with a 'correct'
one. The other
alternative was for the Applicant to bring a judicial review in terms
of PAJA to set aside the 'contentious certificate'
.
[43]
Various notices were
sent to the Applicant about its unlawful use of the property. In the
main application, the Applicant refers,
in an attempt to resolve the
issues with the Respondent, to various meetings that took place
between the parties, without resolution
to any of the issues. The
Applicant stated that notwithstanding these attempts to rectify the
so-called
zoning
certificates,
the
Respondent
on
12 June 2019, issued a notification to the Applicant in which it was
contended
that
a
'land
use
contravention'
was taking
place on the property.
[44]
On 12 June 2019 the Respondent issued another warning notice
regarding the unlawful use of the property.
The Respondent avers that
this notification however was not the first notification to the
Applicant in respect of its unlawful
use of the land. It states that
on two prior occasions, notices had been sent, on the 5 April 2018
and on 29 October 2018. Both
notices refer the Applicant to the
unauthorised land use in the conduction of student accommodation in
contravention of sections
15(1) of the By-laws, and of utilizing land
in a manner other than prescribed by a zoning scheme without the
approval of the Municipality.
The Applicant was then instructed in
terms of section 87 to cease the unlawful utilisation of land without
delay.
[45]
On 28 September
2018
another inspection
was
conducted
on
the property. The
Applicant
was
again
warned
to
cease
the
activity
without
delay
in
terms
of
section 87(2) of the
By-laws. Notwithstanding the aforegoing, and in particular the
notices, the Applicant proceeded to make alterations
to the property
without having approved building plans; and erected advertising
boards also without seeking approval. Further notices
were sent on 28
November 2019.
[46]
The Respondent contends, over and above the non-compliance as
explained above, there are two reasons for the counter-application:

the first is that the title deed conditions of the property make it
plain that it cannot be used for commercial gain, such as student

accommodation; and secondly, the current agricultural zoning of the
property prevents it being utilised as student accommodation.
[47]
Pursuant to a property inspection, the Applicant confirmed that the
entire property is being used as accommodation,
not only for
students, but also other tenants. Short-term rentals are also
provided. There are also 27 parking bays located on
the property of
which some are covered by shade cloth. In terms of section 85(1) of
the Respondents' Municipal Planning By-law,
it requires the
Respondent to enforce compliance therewith. The contraventions of the
Applicant are as follows: There has been
contravention of the
National Building Regulations and Building Standards Act 103 of 1977
("the Building Act"). The Applicant
has converted a garage
into a cottage without approved building plans; Because there were no
approved building plans, the cottage
has been occupied without the
Respondent issuing a completion certificate. Thus, there has been
non-compliance with section 14
of the Building Act; The Applicant has
also erected signage in contravention of its own title deed. These
sign boards have subsequently
been removed.
[48]
The Respondent
contends, in pursuance of interdictory relief, that it has a
clear right to
prevent the continuous contravention of the relevant zoning scheme
provisions.
This
continuous breach constitutes the injury in that the Applicant is
using the property
in
violation of the zoning provisions
of the scheme. I am
satisfied that the Respondent
has
met the requisite requirements for an interdict.
Most certainly the
courts cannot condone self-help to the extent that blatant disregard
for the rules and zoning scheme regulations
are condoned. Deliberate
infringements of these regulations amount to offences under the
By-laws and until such time as the Applicant
complies with the
necessary legislation. I can see no reason why they should not be
interdicted from so utilizing the property
until they have fully
complied.
Costs
[49]
The Respondent seeks
a punitive cost order against the Applicant. They aver that despite
legal advice given to them, and being advised
by the Respondent that
they should have pursued review proceedings under PAJA, they still
persisted with their application. The
Respondent also contends that
the Applicant filed a striking out application which was later
abandoned. This conduct, in and of
itself in my view does not warrant
a punitive cost order. However, the further conduct of the Applicant
deserves censure by this
court.
[50]
The main application
was launched on 16 September 2019. The
Respondent's
answering affidavit was filed on 13 November 2019. On 17 September
2020, the Applicant lodged a land use application
to the Respondent
on the prescribed form. The application was made for the
determination
of
the zoning of the property pursuant to the provisions of section 13
of the Scheme's By-laws. Interestingly to note, the Applicant
stated
in that zoning application, that there was no pending litigation.
That was of course misleading since by this time, these
proceedings
had already been instituted by the Applicant on 16 September 2019.
[51]
When no response had
been forthcoming by Respondent, the Applicant lodged an appeal to the
Respondent
on
9 December 2020. In that letter of appeal, the Applicant complained
of the Respondent's lack of response and acceptance of the
land
development
application
in respect of the
property,
which
was the very same relief that the Applicant had sought in the main
application. On 21 December 2020, the Respondent
replied to that
letter of appeal.
They
admonished
the
Applicant for not specifying in the application that there was
pending litigation, knowing full well that there was. They also
took
issue,
inter
alia
with
the fact that in the Applicant's zoning application, there was an
acceptance that the property was zoned and which position
was
contrary to their position advanced
under oath in
these proceedings
to the effect that
the zoning of the property was 'un-determined'
.
[52]
On this basis,
I
am in agreement
that a punitive cost
order should be
awarded against the Applicant. The Applicant ignored initial advice
to challenge the zoning
via
review
proceedings and they did not do so. The various notices to desist the
unlawful utilisation of the property and to comply
with the relevant
legislation was sent to the Applicant from 2018. The Respondent
in its reply to the
Applicant's
letter
of appeal advised the Applicant that, pending the existing
litigation, which traversed the same issues with regard to the
same
property as the zoning application, that it could
not
determine
the
zoning
application.
The
Respondent
thereafter
proposed that the
Applicant withdraw the litigation and follow the prescribed land use
application that it had now pursued
by virtue of the
zoning application.
This
was on 21 December 2020. This was not done.
[53]
Every citizen and
entity has to conform to the rules and statutory regulations in their
usage of land and it is not open to anyone
to conduct itself or
themselves in a manner which amounts to judicial self-help. Despite
this blatant disregard for the law, and
in defiance of the position
that it knew it should have followed given the aforementioned zoning
application, the Applicant still
persisted with this application, and
this court was confronted with a record of over 1000 pages. I am not
going to state the obvious
- Court are already challenged with
limited resources and time. As I have stated, it is this latter
conduct of the Applicant that
deserves the court's censure and which
warrants a punitive cost order against it.
[54]
In the result, the
following Order is made:
ORDER:
1.
The main application
is dismissed with costs on an attorney and client scale.
2.
The Respondent's
counter-application is granted in respects of paragraphs 1, 2 and 4.2
of the Notice of Motion.
3.
The Applicant is
ordered to pay the costs of the counter-application.
D.S
KUSEVITSKY
JUDGE
OF THE WESTERN CAPE HIGH COURT
On
behalf of the
Applicant
Adv.
DJ Coetsee
Instructed
by
CA
Friedlander (Mr Bell)
On
behalf of the Respondent
Adv.
A Nacerodien
Instructed
by
Webber
& Wentzel (Mr Esterhuizen)
[1]
published
in Provincial Gazette Extraordinary No. 751 dated 20 October 2015
[2]
in
argument,
the
submission was made that a 'determination' was made as opposed to a
'granting' of a zoning
[3]
Tity's
Bar and Bottle Store v ABC Garage and Others 1974 (4) 362 (TPD)
[4]
at
789F-H
[5]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) at paras 26 and 27 and MEG for Health, Eastern Cape and
Another v Kirland Investments (Pty) Ltd t/a Eye & Laser
Institute
2014 (3) SA 481
(CC) at 102-103 and 104-105
[6]
own
emphasis
[7]
Sonering
(Zone):
Landbousone
1
(Agriculatural)
[8]
The
Afrikaans provision states as follows:
'1.
Die goedkeuring moet geag word slegs die afwyking te dek waarvoor
aansoek gedoen word en moet nie vertolk word as magtiging
om
van enige
ander Raadsvereiste of wetlike bepaling af te wyk nie.'
[9]
Kubyana
v Standard Bank of South Africa 2014 (3) SA 56 (CC)
[10]
Some
land uses listed includes inter alia additional dwelling units, farm
stall farm store, riding school, nursery, guesthouse,
aquaculture
etc.
[11]
fn
63 thereof