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[2013] ZAWCHC 53
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Berg River Municipality v Zelpy 2065 (Pty) Ltd (7715/12) [2013] ZAWCHC 53; 2013 (4) SA 154 (WCC) (8 April 2013)
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT)
Case No: 7715/12
In the matter between: Reportable
THE
BERG RIVER MUNICIPALITY
APPLICANTANT
And
ZELPY
2065 (PTY) LTD
RESPONDENT
Coram
: ROGERS J
Heard: 28 FEBRUARY 2013
Delivered: 8 APRIL 2013
______________________________________________________________
JUDGMENT
______________________________________________________________
ROGERS J:
Introduction
The respondent company (‘Zelpy’) is the
owner of property within the area of jurisdiction of the applicant
municipality
(‘the Municipality’). The Municipality
seeks a final interdict preventing Zelpy from occupying or using
certain buildings
on the property constructed in violation of s 4
of the National Building Regulations and Building Standards Act 103
of 1977
(‘the Act’) until an occupancy certificate has
been issued by the Municipality in terms of s 14(1) of the Act.
Zelpy opposes the interdict application and has filed a
counter-application in which it seeks an order directing the
Municipality
to take a decision on Zelpy’s request for
permission to use the buildings in question in terms of s 14(1A),
alternatively
reviewing and setting aside the Municipality’s
refusal of such permission.
The property in question is the Remainder of Portion 5
of the farm Rietfontein, about 4 kms south of Piketberg. As at 1986
there
existed on the property a large Victorian house known as
Dunn’s Castle and three chalets (converted stables). The owner
ran the property as a commercial guest facility. Zelpy acquired the
property in 2003. It has continued to run the business under
the
name Dunn’s Castle Guest House. The property is just under 35
ha in extent. Most of the property is covered with indigenous
vegetation. The property has apparently never been farmed.
In early 2004 Zelpy began
construction of a double-storey conference centre and four
free-standing double-storey residential structures,
each structure
containing four self-catering apartments. Zelpy did not obtain
approval of building plans as required by the Act,
though it claims
to have received oral permission from a municipal engineer whose
name Zelpy’s deponent is unable to recall
and to have been
brought under the impression that plans did not need to be
approved.
1
The unlawful building activity was
discovered by the Municipality’s building inspector in March
2004. At this stage the
work was only at the foundation stage. The
inspector also ascertained that the unapproved building plans would
not be able to
be approved unless the property was rezoned. Pursuant
to the Land Use Planning Ordinance 15 of 1985 (‘LUPO’)
the
property was at that time zoned Agricultural Zone 1. The
Municipality would not be able to approve the building plans unless
the property were rezoned Resort Zone 1.
Zelpy ignored a notice to cease work. In May 2004 the
Municipality sought an interdict in the Piketberg Magistrate’s
Court
(‘the PMC’), which Zelpy opposed. On 14 May 2004
the PMC made an order by agreement that Zelpy could continue
building
provided that by 10 June 2004 it supplied evidence to the
Municipality that it had lodged a rezoning application and provided
further that if the rezoning was not granted the Municipality could
apply for demolition of the unlawful structures. In other
words,
Zelpy was permitted to continue building at its own risk.
Zelpy failed to lodge a rezoning application by the
specified date. In July 2004 the Municipality renewed its
application for
demolition. By this stage the construction of the
unlawful buildings was, according to Zelpy, complete. Zelpy opposed
the demolition
application, alleging that it had instructed a firm
of land surveyors to prepare a rezoning application. On 26 July 2004
the
PMC ordered that the building work could continue (though it was
apparently already complete) but that the Municipality could apply
for demolition if the rezoning application failed.
In September 2004 Zelpy lodged its rezoning application
in which it sought to rezone the areas covered by the new buildings
as
Resort Zone 1, the rest of the farm to remain Agricultural Zone
1. This application, though lodged with the Municipality, was
ultimately required to be adjudicated by the Department of
Environmental Affairs and Development Planning in the Western Cape
Provincial Government (‘the DEA’). The DEA advised Zelpy
that it would need also to make application for approval
in terms of
s 24G
of the
National Environmental Management Act 107 of 1998
.
These processes occupied several years. On 3 October 2007 the DEA
informed Zelpy that an environmental impact assessment would
have to
be undertaken. This assessment was submitted in mid-2008. On 28
August 2009 the DEA refused the rezoning application.
Upon request
the DEA furnished its reasons on 7 December 2009. It appears from
these reasons that the DEA’s approach was
not to permit a
rezoning of this kind unless the agricultural property in question
possessed a unique recreational resource which
set it apart from
surrounding agricultural properties. Zelpy’s property, in the
DEA’s view, did not qualify. The
new structures also exceeded
the height and density guidelines for Resort Zone 1. Accordingly,
only the structures which existed
as at 1986 would be permitted to
function as a resort.
Zelpy lodged an appeal to the relevant provincial
Minister. On 8 February 2011 the Minister dismissed the appeal.
Zelpy did not
thereafter take any steps to have the rezoning
decision brought under judicial review.
In refusing the rezoning application
on 28 August 2009, the DEA had requested the Municipality to
determine an appropriate zoning
for the areas occupied by the
buildings which had existed as at 1986.
2
On 7 November 2009 the Municipality
determined the zoning of the said areas to be Resort Zone 1, the
rest of the property remaining
Agricultural Zone 1.
In the meanwhile, in June 2007 Zelpy commenced further
unlawful building work in the form of another double-storey
structure containing
four apartments. (I note that the proposed use
of this additional building as part of the guest house was not
covered by the
rezoning application which was still pending at that
time.) Again, Zelpy claims that its builder was told by a municipal
official
that Zelpy could build at its own risk. On 13 June 2007 the
Municipality’s building inspector gave an oral instruction for
the unlawful work to cease. This was followed up by a letter from
the Municipality’s attorneys. Zelpy continued construction
despite these demands though again it relies on discussions with
other municipal officials. There was considerable correspondence
between the attorneys. On 30 August 2007 the Municipality’s
attorneys informed Zelpy’s attorneys that the new building
work was unlawful and should cease. On 13 September 2007 Zelpy’s
attorneys advised the Municipality’s attorneys that
the new
structure was complete and that Zelpy merely wanted permission to
put in windows and doors. The Municipality refused
such permission.
On 9 October 2007 the Municipality’s attorneys rejected a
suggestion for a site inspection, saying that
an inspection was
unnecessary and that Zelpy simply ignored all instructions.
For reasons which do not appear from the papers, the
Municipality then seems to have allowed the matter to be held in
abeyance
for many months, perhaps in the expectation that the PMC
would not order demolition while there was a pending rezoning
application.
The Municipality only took up the cudgels again in late
2011, some months after the rejection of Zelpy’s appeal
against
the dismissal of its rezoning application. In response to
the Municipality’s intimation that it would seek a demolition
order, Zelpy in November 2011 requested further discussions, an
invitation which the Municipality rejected as pointless. On 6
February 2012 Zelpy’s attorneys informed the Municipality’s
attorneys that Zelpy intended to lodge a new rezoning
application in
which it would seek to extend the Resort Zone 1 zoning (as
determined by the Municipality on 17 November 2009)
so as to include
the area covered by the new structures. On 2 March 2012 the
Municipality’s attorneys replied that the
Municipality
nevertheless intended to proceed with court action. On 20 March 2012
Zelpy lodged its new rezoning application.
The Municipality launched the current interdict
application on 20 April 2012. Because a new rezoning application had
been lodged,
the Municipality decided not to seek an immediate
demolition order (which is what it originally had in mind) but an
interdict
to prevent the use or occupation of the new structures,
with a right to apply on the same papers for demolition if the new
rezoning
application failed. (The new rezoning application has to
date not been decided.)
The events giving rise to Zelpy’s
counter-application took place after the launch of the interdict
application. On 1 June
2012 Zelpy applied to the Municipality in
terms of s 14(1A) of the Act for permission to occupy the new
structures prior
to the issue of an occupancy certificate, such
permission to endure pending a decision on the new rezoning
application. On 12
June 2012 the Municipality advised Zelpy that its
application could not be granted because s 14(1)(a) stated that
an occupancy
certificate could only be issued in respect of
buildings constructed in accordance with approved plans. The
Municipality proceeded
to quote what it regarded as the relevant
sections applicable to Zelpy’s application, namely s 14(1)(a)
and s 7(1)(a).
The Municipality concluded by stating that
because no approved building plans existed for the new structures
Zelpy’s request
could not be granted. The Municipality added
that plans could not lawfully be approved since they would be in
conflict with the
zoning of the property.
This letter was understood by Zelpy’s attorneys
as meaning that because s 14(1)(a) referred to a building
erected in
accordance with approval granted under the Act, s 14(1A)
was similarly limited. Zelpy’s attorneys in a letter dated
12
June 2012 argued that this interpretation of s 14(1A) was wrong
and that because of the Municipality’s incorrect
view of the
scope of s 14(1A) the Municipality had failed to consider
Zelpy’s request on its merits. The Municipality
was asked to
reconsider the matter. In a letter dated 31 July 2012 the
Municipality’s attorneys notified Zelpy’s
attorneys that
the Municipality adhered to its view and that it had taken due note
of the provisions of s 14(1A) in making
its decision. (In the
counter-application Zelpy says that this letter did not come to its
notice until it was seen as an annexure
to the Municipality’s
answering affidavit. It seems that the letter may have gone astray
within the office of Zelpy’s
attorneys.)
The issues
In regard to the interdict application, Zelpy accepts
that its use of the new structures without an occupancy certificate
or permission
granted in terms of s 14 is unlawful. (The
correctness of this assumption will need to be examined in due
course.) The main
issues raised by Zelpy and pressed in argument are
the following: [a] that the Municipality has not shown that the
criminal sanctions
for which the Act provides are not an adequate
remedy; [b] alternatively, that any interdict granted by the court
should be suspended
pending a decision on Zelpy’s s 14(1A)
request (which Zelpy contends in the counter-application has not yet
been validly
determined) and pending the outcome of the new rezoning
application.
In the counter-application the main question is whether
s 14(1A) permits a local authority to grant permission for a
building
to be used where the building has been erected without the
local authority’s approval. If so, the Municipality’s
decision was vitiated by a material error of law and it failed to
apply its mind to the merits of the s 14(1A) request.
Otherwise, the Municipality’s rejection of the s 14(1A)
application was correct. There are subsidiary questions as to
[a]
whether the Municipality’s letter of 12 June 2012 is to be
characterised as an adverse decision or rather as indicative
of a
failure by the Municipality to take a decision; and [b] whether the
counter-application was launched outside the 180 days
stipulated in
s 7(1)
of the
Promotion of Administrative Justice Act 3 of 2000
and if so whether the failure should be condoned.
Relevant provisions of the Act
In terms of s 4(1) of the Act no person shall,
without the prior approval in writing of the local authority, erect
any building
in respect of which plans and specifications are to be
drawn and submitted in terms of the Act. Section 4(4) provides that
a
person who erects a building in contravention of s 4(1) is
guilty of an offence and liable on conviction to a fine not
exceeding
R100 for each day on which he was engaged in so erecting
the building.
The new structures in the present case were buildings
in respect of which plans and specifications were required to be
drawn and
submitted in terms of the Act. The erection of the new
structures was clearly unlawful. The papers do not contain precise
information
as to the duration of the unlawful building work. The
first unlawful structures appear to have been erected over a period
of
about five months and the second unlawful structure over a
further period of about four months. This would suggest that upon a
criminal conviction Zelpy would be liable to a fine not exceeding
about R27 000.
Sections 14(1), (1A) and (4) read as follows:
‘
(1) A
local authority shall within 14 days after the owner of a building of
which the erection has been completed, or any person
having an
interest therein, has requested it in writing to issue a certificate
of occupancy in respect of such building –
issue such certificate of
occupancy if it is of the opinion that such building has been
erected in accordance with the provisions
of this Act and the
conditions on which approval was granted in terms of section 7, and
if certificates issued in terms of the
provisions of subsection (2)
and, where applicable, subsection (2A), in respect of such building
have been submitted to it,
in writing notify such owner or
person that it refuses to issue such certificate of occupancy it it
is not so satisfied or if
a certificate has not been so issued and
submitted to it.
(1A) The local authority may, at
the request of the owner of the building or any other person having
an interest therein, grant
permission in writing to use the building
before the issue of the certificate of occupancy referred to in
subsection (1), for such
period and on such conditions as may be
specified in such permission, which period and conditions may be
extended or altered, as
the case may be, by such local authority.
(2) …
(2A) …
(3) …
(4) (a) The owner of any
building or, any person having an interest therein, erected or being
erected with the approval of a local
authority, who occupies or uses
such building or permits the occupation or use of such building –
(i) unless a certificate of
occupancy has been issued in terms of subsection (1)(a) in respect of
such building;
(ii) except in so far as it is
essential for the erection of such building;
(iii) during any period not
being the period in respect of which such local authority has granted
permission in writing for the
occupation or use of such building or
in contravention of any condition on which such permission has been
granted; or,
(iv) otherwise than in such
circumstances and on such condition as my be prescribed by national
building regulation,
shall be guilty of an offence.
(b) …
(5) … ‘
Since no penalty is stipulated in s 14(4), the general
penalty clause in s 24 applies, which means that a person guilty of
the
offence created by s 14(4) is liable on conviction to a
fine not exceeding R4 000 or to imprisonment for a period not
exceeding 12 months.
Discussion
In the interdict the only point pressed by Zelpy’s
counsel on the merits was that the criminal sanction in s 14(4)
read with s 24 was a satisfactory alternative remedy. This is the
third of the three requirements for a final interdict: a clear
right, an injury actually committed or reasonably apprehended, and
the absence of similar protection by any other ordinary remedy
(
Setlogelo v Setlogelo
1914 AD 221
at 227). Both sides appear
to have assumed that the first two requirements were met. This was
based on the view that in terms
of s 14(4)(a) it was unlawful
for Zelpy to occupy or use the new structures in the absence of an
occupancy certificate issued
in terms of s 14(1)(a) or
permission granted in terms of s 14(1A) and that the
Municipality, as the local authority
principally responsible for
applying the provisions of the Act in the relevant area, was injured
by conduct which contravened
s 14(4)(a). The Municipality put
the matter thus in its founding affidavit:
‘
[Artikel
14(4)(a)] verwys na ‘n gebou wat opgerig is of word met die
goedkeuring van die plaaslike bestuur. Dit is egter duidelik
dat die
artikel wel ook van toepassing is op die gebruik of bewoning van
enige gebou ten opsigte waarvan daar nie ‘n
okkupasiesertifikaat
uitgereik is nie, ook wanneer die gebou sonder
die goedkeuring van die plaaslike bestuur opgerig is. Dit is so omdat
die doel van
die artikel is om te verhoed dat onveilige geboue
gebruik of bewoon word. Die veiligheid van die bewoning of gebruik
van ‘n
gebou kan slegs bevestig word deur die uitreiking van ‘n
okkupasiesertifikaat.’
Since the parties’ assumption rested on a
particular interpretation of s 14(4)(a), the court is not bound
by that assumption.
It is the duty of the court to determine the
fate of the interdict application in accordance with the law as
determined by the
court. This is particularly important in this
case, where the fate of the counter-application rests on a closely
related point
of interpretation. Section 14 must be interpreted and
applied consistently to the interdict application and the
counter-application.
The premise of the interdict application is that
Zelpy’s occupation of the new structures is unlawful in terms
of s 14(4)(a).
The only express prohibition in s 14(4)(a)
is against the occupation or use of a building which has been or is
being erected
with the approval of a local authority. Zelpy’s
new structures are not such buildings. Zelpy’s erection of the
new
structures without municipal approval was unlawful in terms of
s 4(1) but that section does not state, at least not expressly,
that it is unlawful to use a building which has been unlawfully
erected.
I agree with the common assumption of the parties that
Zelpy’s use of the new structures is currently unlawful in
terms
of the Act. This must necessarily rest on implication but
contrary to what the parties assumed I think the implication’s
location is s 4(1) rather than s 14(4). The distinction is
important, because the location of the implication affects
other
aspects of the interpretation of s 14.
The broad scheme of the Act in my view is this.
Firstly, a person may not
erect
a building without approval
from the local authority in the form of approved plans (ss 4-7).
If he erects a building without
such approval he is guilty of an
offence (s 4(4)). In addition, the local authority may apply to
interdict the unlawful
work and may seek an order for the demolition
of the unlawful structures (s 21). Second, a person who
lawfully erects a
building with the local authority’s approval
may not
use or occupy
the building without the local
authority’s permission in the form of an occupancy certificate
(s 14(1A)) or temporary
permission pending an occupancy
certificate (s 14(1A)). If he occupies or uses the building
without such permission he is
(unless one or other of the
circumstances in sub-paras (ii) and (iv) is present) guilty of an
offence (s 14(4)(a)).
One of the Act’s main purposes, in providing for
the laying down of standards for plans and specifications and in
requiring
plans to be approved by the local authority, is to ensure
that buildings will be safe and suitable for their intended use. The
erecting of a building is not an end in itself; a building is
erected so that it may, upon completion, be occupied and put to
use.
The reason the Act forbids the erecting of buildings without
approved plans and provides for their demolition if they are
unlawfully erected is to prevent the existence of buildings which,
because of the absence of approved plans, may be unsafe and
unsuitable for use (even though no enquiry into safety and
suitability is required in order for the act of erecting to be
unlawful
or in order to obtain an interdict or a demolition order).
Even when a building has been erected in accordance with approved
plans, s 14 does not permit it to be use or occupied without
the local authority’s further approval. This is a further
mechanism to ensure that the building is safe and suitable for
occupation, as is apparent
inter alia
from the requirement
for the certificates specified in ss 14(2) and 14(2A).
There is, however, no express prohibition in the Act
against the use and occupation of a building erected without
approved plans.
Whether there is a prohibition must thus depend on
whether a prohibition can be implied. In
Rennie NO v Gordon &
Another NNO
1988 (1) SA 1
(A) Corbett JA, with reference to a
plethora of earlier cases, said that our courts have consistently
adopted the view that words
cannot be read into a statute by
implication ‘unless the implication is a necessary one in the
sense that without it effect
cannot given to the statute as it
stands’ (22E-H). This view has been repeated in subsequent
decisions of the Supreme Court
of Appeal (see, for example,
American
Natural Soda Ash Corporation & Another v Competition Commission
of South Africa
[2005] 3 All SA 1
(SCA) para 27).
However, in
Palvie v Motale Bus Service (Pty) Ltd
[1993] ZASCA 105
;
1993 (4) SA 742
(A) the court said, with reference to
Rennie
NO
, that the linguistic modification of the statutory provision
under consideration in
Palvie
so as to extend it to cases not
expressly mentioned was ‘not necessary to realise the
ostensible legislative intention or
to make the Act workable’
(749C). This reference to achieving the ostensible legislative
intention was repeated by the
Constitutional Court in
Bernstein &
Others v Bester & Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) at para
105. In
National Director of Public Prosecutions & Another v
Mohamed NO & Others
2003 (4) SA 1
(CC) at para 48, and in
Masetlha v President of the Republic of South Africa &
Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) at para 192, it was said that an
implication must be necessary in the sense that without it effect
cannot be given to the
statute as it stands and that in addition the
implication must be ‘necessary in order to realise the
ostensible legislative
intention or to make the [statute] workable’.
I respectfully suggest that the formulations in the
Constitutional Court cases just cited should not be read as imposing
cumulative
requirements, with the result that a term cannot be
implied into a statute unless [a] the implication is necessary
in the
sense that without it effect cannot be given to the statute
as it stands, and [b] the implication is necessary to realise
the ostensible legislative intention, and [c] the implication
is necessary to make the Act workable. To say that effect
cannot be
given to a statute as it stands unless something is implied into it
seems to me to be indistinguishable from saying
that the Act is not
workable without the implication. These two formulations (which mean
substantially the same thing) are in
turn the basis upon which one
can deduce that the implication is necessary to achieve the
ostensible legislative intention.
Is the inability to give effect to a
statute without implying the term (or, which is the same thing, that
the Act would be unworkable
without the implied term) the sole basis
for deducing the ostensible legislative intention and thus for
implying a term into
a statute? In certain of the cases cited by
Corbett JA in
Rennie
NO
the test for
implied statutory terms was said to be the same as in contracts.
3
The fact that a proposed contractual
term is necessary to give effect to the contract and to make it
workable is one basis on
which a tacit term will be inferred but it
is not the only basis. A court may discern the party’s
intention from the other
terms of the contract, viewed in the light
of surrounding circumstances. A favourite test for ascertaining
whether the parties
had such an intention is to use the device of a
pertinent question asked by an officious bystander. If the bystander
had asked
the appropriate question, would the parties immediately
have responded, ‘Yes, of course, that is too obvious to
mention’?
A tacit term may be inferred into a contract on this
basis even though the contract would be workable without it (see
Christie
The Law of
Contract in South Africa
6
th
Ed at 177-179). The question whether
something is to be implied into a statute is an aspect of
interpretation, and the ultimate
goal of statutory interpretation is
to arrive at the intention of the lawmaker. I thus do not think that
unworkability is the
sole basis on which the lawmaker’s
intention can be satisfactorily deduced.
I cannot say that the Act would be unworkable as it
stands unless one implied into it a prohibition against the use and
occupation
of a building erected in violation of s 4(1).
However, a consideration of the terms of the Act as a whole leaves
me in no
doubt that in order to achieve the ostensible legislative
intention it is necessary to imply such a prohibition. It is
inconceivable
that the lawmaker could have intended that while
lawfully erected buildings could be used and occupied only after
obtaining the
certificate or permission contemplated in s 14,
an unlawfully erected building could lawfully be used and occupied
unless
and until it was demolished. Such a view would defeat the
obvious intention of the lawmaker. The lawmaker intended that
buildings
should not come into existence without approved plans and
that buildings erected in accordance with approved plans should not
be use or occupied without further permission. If one were to
commandeer the officious bystander whose more usual function is
to
put questions to contracting parties and got him to ask the
lawmaker, as the latter prepared to approve the Act, whether a
person would be entitled to use and occupy a building erected
without approved plans, the lawmaker’s immediate response
would have been, ‘Of course not, he cannot even lawfully erect
such a building.’ By forbidding in s 4(1) the
act of
bringing into existence a building intended (upon completion) for
use and occupation, the lawmaker can be taken to have
also forbidden
the intended use and occupation if for any reason the unlawful
erecting was allowed to reach the stage of a completed
building.
Even though the local authority may apply for a demolition order,
this might take some time.
It will be noted that I have located the implication in
s 4(1) rather than in s 14(4)(a). This accords with my
view
as to the scheme of the Act. Section 14 in my opinion applies
only to buildings erected with the local authority’s approval
under the Act. In order for a building to be used or occupied it
must first be erected with approval granted under the Act, and
then
permission to use or occupy the building must be obtained. Section
14 deals with the latter stage, on the premise that the
former has
been complied with. In other words, in terms of s 14 the only
buildings in respect of which the local authority
may give
permission to use and occupy are those erected with municipal
approval. (The fact that the implication is located in
s 4(1)
naturally does not mean that s 14 is irrelevant in the process
of reasoning leading to the implication –
on the contrary, the
implication arises from a consideration of s 4(1) in the
context and scheme of the Act as a whole.)
There are several textual considerations which
cumulatively support the view that the implication is located in
s 4(1) rather
than s 14(4)(a). Firstly, In terms of
s 14(1), which applies in the case of a completed building, an
occupancy certificate
can only be granted in respect of a building
erected in accordance with the Act. Such approval would entail
inter
alia
the approval of building plans and specifications in terms
of s 7(1)(a). Section 14(1A) does not expressly refer to a
building
erected (or being erected) in accordance with approval
granted under the Act but in my view the permission contemplated in
s 14(1A)
is confined to such buildings. Firstly, 14(1) refers
to the ‘owner of
a
building’. Section 14(1A) then
refers to ‘the owner of
the
building’ in respect
of the period before the issue of an occupancy certificate in terms
of s 14(1). In context, the
definite article ‘the’
indicates that what is being dealt with in s 14(1A) is a building of
the kind referred to
in s 14(1), namely a building erected (or
being erected) in accordance with the provisions of the Act. This is
also indicated
by the fact that permission under s 14(1A) is
intended as a temporary measure prior to the issuing of an occupancy
certificate
in terms of s 14(1). Although all the circumstances
entitling the owner to an occupancy certificate might not yet have
been
satisfied at the time permission under s 14(1A) is sought, the
building must be of a kind in respect of which an occupancy
certificate
could in due course be granted, namely a building
erected or being erected in accordance with approval granted under
the Act.
Second, the introductory part of s 14(4)(a) refers
expressly to a building ‘erected or being erected with the
approval
of a local authority’. The occupation or use of such
a building is unlawful unless one or other of the four circumstances
listed in sub-paragraphs (i) to (iv) is present. One of those
circumstances is that an occupancy certificate has been issued
in
terms of s 14(1)(a) while another is that permission has been
granted by the local authority (
viz
in terms of s 14(1A)).
This indicates that s 14(1)(a) and s 14(1A) are intended
to apply to buildings of the same kind,
namely those referred to in
the introductory words of s 14(4)(a) (that is, a building
‘erected or being erected with
the approval of a local
authority’). The permission referred to in sub-paragraph (iii)
is clearly the permission envisaged
in s 14(1A). The phrase
‘such building’ in sub-paragraph(iii) refers back to the
phrase ‘any building
erected or being erected with the
approval of a local authority’ in the opening portion of
paragraph (a) of s 14(4).
If the lawmaker had intended s 14(1A)
to apply also to a building erected or being erected without the
local authority’s
approval, s 14(4)(a) could not sensibly
have been restricted to buildings erected or being erected with the
local authority’s
approval.
Third, the legislative history of s 14 supports
this interpretation. The provision now to be found in s 14(1A)
was previously
contained (though in slightly different language) in
paragraph (b) of s 14(4). The said paragraph (b) read as
follows:
‘
Permission
in writing referred to in paragraph (a)(iii) may, at the request of
the owner of any building or of any person having
an interest
therein, be granted by a local authority on account of considerations
of fairness for such period and on such conditions
as may be
specified in such permission, which period and conditions may be
extended or altered by such local authority, as the
case may be.’
Section 14(4)(b) in this form regulated the granting of
the permission contemplated in s 14(4)(a)(iii). As already
noted, the
permission contemplated in s 14(4)(a)(iii) was (and
still is) a permission which may be granted for the occupation or use
of ‘such building’, namely a building of the kind
contemplated in the introductory portion of s 14(4)(a), ie ‘any
building … erected or being erected with the approval of a
local authority’. It follows that in terms of s 14 as it
originally read, there were textual considerations indicating
conclusively that the permission contemplated in s 14(4)(b)
could be granted only in respect of a building erected or being
erected with the approval of a local authority. In terms of s 7
of
Act 62 of 1989 paragraph (b) of s 14(4) was deleted and
sub-section (1A) was inserted. Although there were minor changes
in
the formulation in other respects, there is no indication that the
purpose of the amendment was to extend the type of buildings
in
respect of which permission to use or occupy could be granted. The
main reason for the amendment, I suspect, was that it was
thought
more logical, as with the issuing of permanent occupancy
certificates, to deal at the beginning of the section with the
granting of temporary permission to use or occupy buildings pending
the issuing of occupancy certificates, and then to deal with
unlawful
use and occupation in s 14(4)(a). In other words, ss 14(1) and
14(1A) lay the groundwork for the prohibition in s 14(4)(a).
Fourth, in order to find that s 14(1A) authorises
the grant of temporary permission to use and occupy a building even
though
it has been or is being erected without approved plans it
would be essential to imply, after the word ‘with’ in
the
phrase ‘with the approval of a local authority’ in
the introductory part of s 14(4)(a), the further words ‘or
without’. This implication would be essential to bring the
prohibition in s 14(4)(a) in line with the proposed expansive
interpretation of s 14(1A). Without some such implication in
s 14(4)(a) there would be the manifest absurdity that
while
s 14(1A) would (on the expansive interpretation) contemplate a
process for obtaining permission to use an unlawfully
erected
building, s 14(4)(a) would not prohibit the owner of the
unlawfully erected building from using it without getting
the said
permission. However I find it impossible to imply the proposed
additional words in s 14(4)(a). One is not, in s 14(4)(a),
dealing with a case where the lawmaker has used a wide term in
circumstances where it appears that some implied restriction must
have been intended. Here the lawmaker in s 14(4)(a) begins with
an unrestricted expression ‘any building’ and
then
expressly qualifies these words by means of the phrase ‘erected
or being erected with the approval of a local authority’.
If
one were to imply into the latter phrase, after ‘with’,
the words ‘or without’, one will effectively
have
rendered superfluous both the express qualification (‘with the
approval of a local authority’) and the implied
qualification
(‘without the approval of a local authority’), since
then the lawmaker may just as well have referred
to ‘any
building’ without qualification (a building can only be
erected with or without the approval of the local
authority –
these two qualifications cover the whole field). Put differently,
the only reason for implying the additional
words ‘or without’
in s 14(4)(a) is to neutralise and render irrelevant the
express qualification which the
lawmaker has inserted. However, it
is a cardinal principle in the process of implication that the
implied term should not conflict
with the express language of the
instrument (see, eg,
Absa bank Ltd v SACCAWU National Provident
Fund
[2012] 1 All SA 121
(SCA) para 34). This point can be
expressed with reference to an equally well accepted canon of
construction. Since the effect
of the proposed implication is to
neutralise the limiting effect of the express qualification (‘with
the approval of the
local authority’), one could just as well
contend (without arguing for any implication) that the words
‘erected or
being erected with the approval of a local
authority’ should simply be ignored (the effect would be the
same). Such a contention
would, of course, offend against the rule
that effect should if at all possible be given to every word in a
statute (see, eg,
CIR v Golden Dumps (Pty) Ltd
1993 (4) SA
1100
(A) at 116F-117B;
Fish Hoek Primary School v GW
2010 (2)
SA 141
(SCA) paras 9-10). Such an extreme disregard of the
lawmaker’s words is not in my view required to make sense of
the Act.
The reason that s 14(4)(a) does not contain the
missing words and that the provision refers only to buildings
erected in
accordance with municipal approval is that the scope of
s 14 as a whole, including s 14(1A), is confined to
buildings
erected or being erected in accordance with the approval
of the local authority. The lawmaker did not deal in s 14 with
buildings for which no approval existed because the lawmaker took it
for granted that since such buildings could not lawfully be
erected
they obviously could not be occupied or used.
Section 21 does not state that a court is compelled to
order the demolition of an unlawfully erected building. If the law
were
applied vigilantly and properly (which seems not have occurred
in this case) unlawful building work would be interdicted before
it
got very far. However, if the erecting of a building were competed
despite the absence of approval, it is conceivable that
a court
might in the exercise of its discretion refuse to order demolition
if the building were soundly constructed and if there
were other
circumstances operating in favour of the owner. If, as I consider,
s 14 applies only to lawfully erected buildings
and that it is
necessarily implied in s 4(1) that an unlawfully erected
building cannot be used, there might be a stalemate
in which the
local authority has refused to approve plans but the court in its
discretion has refused demolition. Even if s 14(1A),
contrary
to my view, could apply to a building erected without plans, it
would not be a permanent solution to this particular
problem, since
permission under s 14(1A) is a temporary measure until an
occupancy certificate can be issued in terms of
s 14(1)(a). An
occupancy certificate in terms of s 14(1)(a) can never be
issued in respect of a building erected without
the local
authority’s approval. I am inclined to think that this type of
stalemate is unlikely ever to arise in the real
world. If the local
authority has good reason to refuse plan approval (and if its
objections are irremediable), I cannot see
that it would be proper
for a court to refuse a demolition order. Conversely, if there were
good grounds to refuse a demolition
order, it seems unlikely that
the local authority could properly refuse forever to approve
building plans – such a refusal
would be susceptible to
review. However, if there were a real and persistent stalemate, the
answer might well be that the owner
could never use the building
despite its non-demolition. It would not be for the court to fill
the
casus omissus
left by the lawmaker (
Summit Industrial
Corporation v Claimants against the Fund Comprising the Proceeds of
the Sale of the MV Jade Transporter
1987 (2) SA 583
(A) at
596J-597D;
Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank
van Suider-Afrika Bpk
[1994] ZASCA 23
;
1994 (3) SA 407
(A) at 422B-G). The
possible existence of this
casus omissus
of rare occurrence
would not be a reason to imply into s 14(4)(a) words which are
inconsistent with the express wording of
that provision or to refuse
to imply into s 4(1) the implied prohibition which is necessary
to achieve the obvious legislative
intent.
There is a further reason for implying the prohibition
in s 4(1) rather than s 14(4)(a). In the case of s 4,
there
is a prohibition in s 4(1) and an offence created in
s 4(4). In the case of s 14, the prohibition and offence are
not
separately legislated – the sole source of unlawfulness is
the offence created by s 14(4)(a). By implying into s 14(4)(a)
words which would extend its operation to buildings erected without
municipal approval one would be establishing a wider criminal
offence than the one expressly created by the lawmaker. The scope of
penal provisions must be conveyed with reasonable clarity
(
Ellis
Park Stadium v Minister of Justice
1989 (3) SA 898
(T) at
910E-F;
Bertie van Zyl (Pty) Ltd v Minister of Safety and
Security
2010 (2) SA 181
(CC) paras 47 and 101-103). Penal
provisions are to be interpreted restrictively in the case of
obscurity or ambiguity (
R v Milne & Another (7)
1951 (1)
SA 791
(A) at 823 B-F;
S v Sparks NO & Others
1980 (3) SA
952
(T) at 957E-H;
S v Motswi
1982 (1) SA 172
(T) at 177C-F).
This is a further obstacle to implying words into s 14(4)(a),
and it is only by some such implication that
s 14(1A)’s
scope could sensibly be read as including buildings erected without
municipal approval. The same difficulty
does not exist in s 4.
Although the prohibition in s 4(1) necessarily implies, in the
context of the Act as a whole,
a prohibition against use, it is not
necessary, and in the light of the cases just cited probably not
permissible, to make the
same implication in s 4(4), which
expressly criminalises the erecting (not the use) of a building in
contravention of s 4(1))
and authorises a penalty expressed
with reference to the number of days on which the person was engaged
in erecting (not using)
the building.
I thus consider that s 14(1A) does not apply to
buildings erected or being erected without the local authority’s
approval.
On my interpretation, s 14(1A) would entitle a local
authority to grant permission for a building to be used where the
building
has been or is being erected in accordance with municipal
approval but there is some temporary impediment to the issuing of an
occupancy certificate. Examples would be where the erection of the
building has not yet been completed but some discrete part
of it is
ready for use; or where the whole building is very close to
completion and may safely be used (or partially used); or
where the
building has been completed but there is some delay in obtaining the
certificates required by ss 14(2) and 14(2A).
I reject Zelpy’s
submission that the purpose of s 14(1A) is to cover the case where a
building has been erected without
approval. There is nothing in the
wording of the section or in its history to support that view. If
this had been the intention,
I would have expected the lawmaker to
say so in clear terms.
My conclusions thus far lead to the following
conclusions: [a] Firstly, Zelpy’s new structures were erected
without municipal
approval and in violation of s 4(1). It
follows that Zelpy was not entitled to obtain permission for their
use in terms
of s 14(1A) and the Municipality rightly refused
permission. The counter-application must thus be dismissed. [b]
Second,
Zelpy’s use of the new structures violates the implied
prohibition in s 4(1) against the use of structures erected
without approval under the Act. The remaining questions are whether
the Municipality is entitled to an interdict to prevent Zelpy’s
ongoing violation of the implied prohibition.
Although the Municipality in its founding papers
located the implied prohibition in s 14(4)(a) rather than in s 4(1),
this
was a legal misapprehension which does not affect the nature of
its case. The Municipality, while treating the implication as a
component of s 14(4)(a), has also consistently contended that
ss 14(1)(a) and 14(1A) do not apply to buildings erected
without approval under the Act. It has also always been the
Municipality’s case that the new structures were erected in
violation of s 4(1) of the Act. The essence of the
Municipality’s case was thus that a building erected without
approval cannot be used or occupied, because no mechanism exists to
confer permission for such use. That legal conclusion is one
which I
consider flows from a proper interpretation of the Act, even though
my interpretative route differs from the one advanced
by te
Municipality in the founding papers. I put to counsel my difficulty
in locating the implied term in s 14(4)(a) and
invited
supplementary submissions on the point, which I have taken into
account in my reasoning. This is thus not a situation
where the
Municipality could properly be non-suited for having failed to make
out its case in the founding papers.
The fact that the implication is located in s 4(1)
rather than s 14(4)(a) may be thought to bring into play the orders
granted
by the PMC, since those orders were made in response to
applications by the Municipality based on Zelpy’s violation of
s 4(1). However, the applications and orders only concerned the
erecting of the buildings. The question whether the new structures,
upon completion, could lawfully be occupied was not addressed in the
magistrate’s court proceedings and the PMC made no
orders in
that regard. The orders in essence did not prevent Zelpy from
erecting the buildings at its own risk (though I think
the
Municipality erred in agreeing to the order of 14 May 2004 and the
PMC erred in making the order of 26 July 2004). Furthermore,
the
orders stated that the Municipality could seek demolition of the new
structures if the rezoning application failed. The first
rezoning
application (which is the one contemplated in the PMC orders) did
fail. It cannot be contended that the temporary indulgence
which the PMC (incorrectly in my view) granted to Zelpy survived the
final rejection of the first rezoning application. I may
add that
the PMC orders in any event would not have applied to the new
structure which Zelpy built in 2007.
Zelpy did not in argument contend that if its use and
occupation of the new structures were unlawful in terms of the Act,
the
first and second requirements for a final interdict were not
satisfied. There are many cases which confirm that in cases of this
kind, where a local authority is the primary body charged with
applying the provisions of a law relating to building or use of
land, the local authority’s rights are infringed by a
contravention of the law and such infringement constitutes an injury
sustaining an application for an interdict.
On the merits, this leaves the third
requirement for an interdict, namely ‘the absence of similar
protection by any other
ordinary remedy’ (
Setlogelo
supra
at 227).
Zelpy’s argument was that the criminal offences created by the
Act were a sufficient remedy. As appears from the
decision in
Food
and Allied Workers’ Union v Scandia Delicatessen CC
2001
(3) SA 613
(SCA), particularly at paras 34-41, a criminal
prosecution may in appropriate circumstances be found to constitute
a satisfactory
alternative remedy.
4
Given the Municipality’s
approach in the founding papers to s 14(4)(a), the alternative
criminal remedy would have
been a prosecution in terms of s 14(4)(a)
read with s 24 of the Act (relating to the unlawful use of the
new structures)
– this would be in addition to a possible
prosecution in terms of s 4(4) for the unlawful erecting of the
structures.
The adequacy of the criminal remedies was not
satisfactorily dealt with by the Municipality in the founding papers
but the matter
was canvassed in the answering and replying papers.
Given my interpretation of the Act,
s 14(4)(a) is not the source of the unlawful conduct of which
the Municipality complains.
Section 14(4)(a) only applies to the use
of a building erected with the approval of the local authority. It
follows that the
criminal remedy in s 14(4)(a) read with s 24
was not available to the Municipality. The source of the
unlawfulness
is the prohibition to be implied in s 4(1). I have
already expressed my doubt as to whether a contravention of the
implied
prohibition is also an implied offence in terms of s 4(4),
given the restrictions on expanding criminal contraventions beyond
their clear language. If it is not an offence, there are no criminal
remedies available to the Municipality at all in respect
of Zelpy’s
unlawful use of the new structures. The fact that the Municipality
might be able to lay a charge in terms of
s 4(4) in respect of
the unlawful erecting of the new structures is not an alternative
remedy in respect of the unlawful
use of the completed structures.
It would not even have been an adequate remedy in respect of the
unlawful erecting of the new
structures. As I indicated earlier, the
only penalty is a fine not exceeding R100 per day of unlawful
building work. That would
not come to more than about R27 000.
Zelpy built the structures for commercial exploitation. Its managing
director and controller
Mr Edmondson stated in the answering
affidavit that the extension of the accommodation facilities in 2004
was the only way to
make the commercial operation viable. He states
that Zelpy spends more than R110 000 per year on repairs and
maintenance.
5
Its annual turnover, according to
annexed financial statements, currently exceeds R1 million. Although
the financial statements
reflect an accounting loss, it is wholly
implausible that Zelpy would have been deterred from erecting the
unlawful structures
by exposure to the modest fine for which s 4(4)
makes provision.
The provisions of s 21 are, furthermore, an
indication that the lawmaker intended the local authority to have
the power to
seek civil remedies. Indeed, I think it would usually
be the duty of a local authority to interdict unlawful building
work. The
lawmaker could never have intended that the local
authority would have to be satisfied with exacting a criminal fine
not exceeding
R100 per day of unlawful work. Although s 21 does
not deal with unlawful use, its provisions nevertheless point to a
legislative
recognition that the local authority should have easy
access to civil remedies. (Section 21 is designed to facilitate
access
to the magistrate’s courts by removing objections to
jurisdiction; it does not oust the jurisdiction of the high court.)
Even if s 14(4)(a) read with s 24 applied in
this case, I would not regard it as a suitable alternative remedy.
Although
Scandia Delicatessen
is authority for the view that
a criminal prosecution may in an appropriate case be a suitable
alternative remedy, there are,
at the level of general principle,
reasons why it will often not be an adequate alternative.
Setlogelo
,
it should be emphasised, refers to the absence of similar protection
by any other ordinary remedy. One would not usually regard
a
criminal remedy as one which is available to the harmed individual.
It is a pubic remedy at the discretion of the prosecuting
authorities. Only if the directorate of public prosecutions declines
to prosecute can the individual launch a private prosecution,
and I
would hesitate to call a private prosecution an ‘ordinary
remedy’ (they are very rare in this country). A criminal
conviction also does not, in a case like this, provide ‘similar
protection’: the protection afforded by an interdict
is the
cessation of the unlawful activity; a criminal prosecution does not
achieve anything similar – it punishes past
conduct (see
Ebrahim v Twala & Others
1951 (2) SA 490
(W) at 493A-B).
Then there is the fact that in a criminal prosecution
mens rea
must be established and that all the elements of the offence
must be proved beyond reasonable doubt. In some cases this might not
be a real impediment (see
Scandia Delicatessen
paras 39-40)
but in other cases it may be a reason to avoid criminal proceedings.
In the present case, for example, Zelpy’s
counsel submitted in
para 63 of the heads of argument in the interdict that Zelpy was
unlikely to be found guilty of a contravention
of s 14(4)(a)
‘due to a lack of intention on its part to contravene the NBA
and the zoning scheme’. When I asked
Zelpy’s counsel in
argument whether Zelpy conceded that it was guilty of a criminal
offence she declined (perhaps understandably)
to make the
concession. It is also often the case that the criminal sanction
will, in the circumstances of the case, be an inadequate
deterrent.
In this case, for example, Zelpy is a company and thus the only
criminal sanction it would face in terms of s 24
of the Act is
a fine of R4 000 – imprisonment would not be an option
(see
s 332(2)(c)
of the
Criminal Procedure Act 51 of 1977
).
Although Zelpy’s directors or servants could perhaps face
imprisonment if charged alongside the company, the prosecution
of
such persons would not be an alternative remedy as against Zelpy.
There is a raft of cases in which local authorities
have been granted interdicts in regard to planning matters (it would
be tedious
to give the citations). It is, I think, regarded as the
usual way in which a local authority goes about preventing
contraventions
of zoning schemes and other restrictions relating to
the use of land. In some of these cases the courts considered and
rejected
a contention that the statutory offences were to the
exclusion of civil remedies. The separate question as to whether the
criminal
remedies were adequate alternatives so as to make it
inappropriate to grant an interdict has not, as far as my research
goes,
been pertinently considered though it does not seem to have
occurred to the many experienced judges and counsel who featured in
the cases that this was a proper objection in such cases. In
City
Council of Johannesburg v Berger
1939 WLD 87
Solomon J, in
granting an interdict to prevent unlawful building work, said that
the local authority was entitled to protect
its right of control
from being violated by way of an interdict, and he quoted with
approval the following words from an English
case (at 90): ‘If
there were no remedy except the statutory remedy, a public authority
might by circumstances be rendered
singularly impotent although it
had made bye-laws’; and Solomon J added that the truth of this
remark was illustrated by
the respondent’s disregard in that
case of the municipality’s protests. In
Randleigh Buildings
(Pty) Ltd v Friedman
1963 (3) SA 456
(D) – a zoning
violation – Warner AJ said the following (457H-458A):
‘
I can
find no ground for inferring in this case that te Legislature
intended that the only sanction was to be the criminal one.
If it
were it would mean that the Courts would be powerless to ensure that
the scheme was carried into effect because individuals
could continue
breaking it and accepting their punishment. This would not have the
effect of furthering the purposes of the scheme
as set out in the
Ordinance. Unless the Courts are in a position to ensure that the
scheme is carried out and not merely to punish
each breach the
intention of the Legislature will be defeated.’
6
The
Scandia Delicatessen
case is in truth a
relatively rare example where a criminal remedy has been found to be
a suitable alternative. The circumstances
in that case were very
different to the present one. The applicant was not a local
authority seeking to enforce a planning law
in the public interest.
A trade union was complaining about an employer’s failure to
comply with an industrial court order
for the reinstatement of
workers. Effectively the court found that a civil remedy in the
nature of a contempt order was not necessary
in the light of the
fact that it was a statutory offence for the employer to fail to
comply with the industrial court order.
Recently, in
Independent Outdoor Media (Pty) Ltd &
Others v City of Cape Town
[2013] ZASCA 46
, a case where a local
authority wished to interdict the unlawful displaying of advertising
signs, the Supreme Court of Appeal
upheld the trial court’s
rejection of the defence that the criminal remedy was a satisfactory
alternative. Admittedly there
was evidence that criminal
prosecutions had been found to be unavailing in the past but it is
nevertheless worth quoting paras
35 and 36 of the court’s
judgment:
‘
[35]
The
City contended that history has shown that the laying of criminal
charges had proved to be ineffectual in the past. Delays arising
in
the prosecution process, inter alia due to representations made on
behalf of the persons charged, had resulted in unlawful signs
remaining on display and continuing to generate income for the
accused for lengthy periods. In the light of this and ‘the
relatively low maximum sentences that are handed down by the criminal
courts and the fact that the criminal courts lack the power
to grant
orders of the kind sought in this case, namely that the offending
signs be removed’ the court a quo observed that
‘criminal
proceedings do not constitute an adequate alternative remedy in a
case such as the present’.
[36] I agree. In my view there
is no reason why an interdict should not be granted to stop unlawful
signs being displayed in breach
of the Bylaw, and while a criminal
prosecution may well follow upon an offender making itself guilty of
unlawful conduct, it would
be a sad day if the criminal courts were
to be clogged by a vast number of cases of such a nature. The court a
quo was quite correct
to have granted the interdict that it did.’
In the circumstances, and despite the absence of
evidence as to the history and effect of prosecutions under the Act,
I am satisfied,
viewing the matter in a common-sense way, that such
criminal charges as the Municipality may have been entitled to lay
with the
prosecuting authorities in this case would not have
constituted a satisfactory alternative to an interdict as
contemplated in
Setlogelo.
In the Municipality’s supplementary submissions
the Municipality advanced an alternative argument to the effect that
Zelpy’s
use of the new structures was in any event contrary to
LUPO. Section 39(2) of LUPO reads as follows:
‘
(2) No
person shall –
contravene or fail to apply
with –
the provisions incorporated in
a zoning scheme in terms of this Ordinance, or
conditions imposed in terms of
this Ordinance or in terms of the Townships Ordinance, 1934,
except in accordance with the
intention of a plan for a building as approved and to the extent that
such a plan has been implemented,
or
utilise any land for a purpose
or in a manner other than that intended by a plan for a building as
approved and to the extent
that such plan has been implemented.’
In terms of s 46(1)(a) of LUPO a person who
contravenes or fails to comply with s 39(2) is guilty of an
offence and on
conviction liable to a fine not exceeding R10 000
or to imprisonment for a period not exceeding five years or both.
Section
46(2) provides that a person convicted of an offence under
LUPO and who after such conviction continues with the offending
conduct
shall be guilty of a continuing offence and on conviction
liable to a fine not exceeding R100 in respect of each day on which
he
so continues or continued therewith.
Prima facie
Zelpy’s
conduct in using the new structures for commercial guest house
purposes contravenes both s 39(2)(a)(i) (the current
zoning
being agricultural) and s 39(2)(b) (there being no approved
plan). On the other hand, a contravention of LUPO was not
the basis
on which the Municipality sought relief in its founding papers in the
interdict application. Given the conclusions I
have reached thus far,
I find it unnecessary to decide whether – if s 39(2) of
LUPO had been the sole basis for establishing
the unlawfulness of
Zelpy’s use of the new structures – the Municipality
would have been entitled on its papers as
they stand to rely on that
section to sustain the interdict.
Suspension of interdict
Since the Municipality has
established the prerequisites for an interdict, the remaining
question is whether I can and should
suspend the interdict. Given my
view that s 14(1A) of the Act is inapplicable to the new
structures and that Zelpy’s
request for permission under that
section was rightly refused by the Municipality, a suspension
pending a (further) decision
under that section falls away. Zelpy
argues, however, that I should in any event suspend the interdict
pending a decision on
the new rezoning application. I am prepared to
accept that a court has the jurisdiction to suspend an interdict
even though the
interdicted conduct is a continuing criminal offence
(as is the case here by virtue of s 39(2) of LUPO).
7
Nevertheless a discretion in these
circumstances will be sparingly exercised, for obvious reasons.
I can see no basis for suspending the interdict in this
case. Zelpy has had the benefit of its unlawful conduct for long
enough
and has had fair warning that it may need to cease its use of
the new structures until its situation is regularised (if it ever
is). I decline to enter into a consideration of whether the new
rezoning application is or is not likely to succeed. I have no
way
of telling, though the papers before me do not explain why the
second application should succeed when the first one failed.
The
fact that in consequence of the closure several people may lose
their employment with Zelpy (at least temporarily) and that
the
Piketberg area will be deprived of what Zelpy regards as a valuable
tourist facility to the benefit of the local economy
is certainly
unfortunate but that type of prejudice will very often be present
when people use their property contrary to planning
laws. These
considerations do not justify an order which effectively condones a
flouting of the law. Zelpy erected the new structures
unlawfully.
The only reason it is now in a position to complain of prejudice if
it is required to cease its unlawful use is that
it completed the
building of the new structures at its own risk and in the knowledge
that it did not have the approval required
by the Act and LUPO.
Zelpy should not be permitted to use its prior unlawful conduct as
the foundation for justifying a suspension
of the interdict. It
would undermine sound and effective local government if the message
went out that people who unlawfully
commence operations without
required approvals will be permitted to continue with those
operations just because they already
exist. Nobody would then have
an incentive to follow the rules.
The Municipality could in this case have applied for
demolition of all the new structures pursuant to the rejection of
the first
rezoning application. An interdict against the use of the
new structures is a less drastic remedy and one about which Zelpy
can
have no legitimate complaint in the circumstances. This said, I
certainly hope that the second rezoning application can be
determined
more promptly than the first. The lengthy delays which
bedevilled the first application are not consistent with our
constitutional
values of administrative fairness and efficiency and
do not appear to have been the fault of Zelpy.
Conclusion
The interdict sought by the Municipality in paragraph 1
of its notice of motion prohibits the use of the new structures
unless
an occupancy certificate in terms of s 14(1) has been
issued. Although my analysis is that neither an occupancy
certificate
nor permission under s 14(1A) can currently be
granted in respect of the buildings given that no approval for their
erection
exists, it is not inappropriate to retain a reference to
s 14 since if the new rezoning application is granted and if
the
building plans for the new structures are thereafter approved,
Zelpy will at that stage be entitled to seek a right to use and
occupy the new structures in terms of s 14. Such permission
remains, in the final analysis, a prerequisite for Zelpy to
use the
new structures. However, I do not think the reference to s 14
should be confined to s 14(1); it is conceivable
that if the
plans were in due course approved, Zelpy might be entitled (prior to
the issue of an occupancy certificate) to seek
temporary permission
in terms of s 14(1A) if there is any delay in getting an
occupancy certificate in terms of s 14(1).
The Municipality seeks in paragraph 2 of the notice of
motion an order entitling it to apply on the same papers for
demolition
if the new rezoning application is refused. I do not see
any utility in such an order. So much water is likely by then to
have
passed under the bridge that the Municipality may as well bring
a further application under a new case number.
I make the following order:
(a) The respondent is prohibited from in any way using
or occupying, or allowing to be used or occupied, the structures it
unlawfully
erected in 2004 and 2007 without approval in terms of the
National Building Regulations and Building Standards Act 103 of 1977
on Remainder of Portion 5 of the farm Rietfontein No 184 located in
the Berg River Municipality, Piketberg Division, Western Cape,
held
under Deed of Transfer T2823/2004, unless and until the respondent
has been issued with an occupancy certificate in terms
of s 14(1)(a)
of the Act or has obtained the permission contemplated in s 14(1A)
of the Act.
(b) The respondent shall pay the applicant’s costs
in the main case, including the costs of two counsel.
(c) The respondent’s counter-application is
dismissed with costs, including the costs of two counsel.
______________________
ROGERS J
APPEARANCES
For Applicant: J NEWDIGATE SC & EF VAN HUYSTEEN
Instructed by:
De Klerk & van Gend Inc
Cape Town
For Respondent: A ERASMUS
Instructed by:
Anderson Nel & Co
c/o Visagie Vos
Cape Town
1
It
was not alleged by Zelpy that it ever obtained permission in terms
of s 7(6) of the Act to commence building before formal
plan
approval. An application for permission in terms of s 7(6) must
be made in writing. The permission would have to be
granted by a
duly authorised official and would, one would expect, invariably be
in writing.
2
Presumably
this request was made with the provisions of s 14(1) of LUPO in
mind.
3
See,
eg,
Taj Properties (Pty) Ltd v Bobat
1952 (1) SA 723
(N) at 729E.
4
Zelpy’s
counsel also cited
Bannatyne v
Bannatyne
2003 (2) SA 359
(SCA) as a
further example but in my view that case was not based on an
application of the third
Setlogelo
requirement for an interdict but on
the view that the high court would exercise only sparingly a
supposed jurisdiction (assumed
to exist for purposes of the case) to
commit a person for contempt of an order of a maintenance court. The
decision, I may add,
was reversed by the Constitutional Court –
[2002] ZACC 31
;
2003 (2) SA 363
(CC).
5
Para
31 record p 239.
6
See
also
Tzaneen Local Transitional Council
v Louw & Others
1996 (2) SA 860
(T) at 863I-864D.
7
I
dealt briefly with this question (with reference to prior authority
in this division) in
Booth & Others
v Minister of Local Government, Environmental Affairs and
Development Planning & Another
[2013]
ZAWCHC 47
para 65.