410 Voortrekker Road Property Holdings CC v Minister of Home Affairs and Others (26841/09) [2010] ZAWCHC 87; 2010 (8) BCLR 785 (WCC) ; [2010] 4 All SA 414 (WCC) (3 May 2010)

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[2010] ZAWCHC 87
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410 Voortrekker Road Property Holdings CC v Minister of Home Affairs and Others (26841/09) [2010] ZAWCHC 87; 2010 (8) BCLR 785 (WCC) ; [2010] 4 All SA 414 (WCC) (3 May 2010)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
In the matter between:
Case
No.26841/09
Case
No. 18153/09
410 VOORTREKKER ROAD
PROPERTY HOLDINGS CC
First Applicant
and
MINISTER OF HOME
AFFAIRS
First
Respondent
THE DIRECTOR-GENERAL
OF THE
DEPARTMENT OF HOME
AFFAIRS
Second Respondent
MINISTER OF PUBLIC
WORKS
Third
Respondent
MUNICIPALITY OF CAPE
TOWN
Fourth
Respondent
INVICTA PROPERTIES
(PTY) LTD
Fifth
Respondent
SNACK TIME PROPERTIES
CC t/a SANTOS
Sixth
Respondent
INTERSITE PROPERTY
MANAGEMENT
SERVICES (PTY)
LTD
Seventh
Respondent
PASSENGER RAIL AGENCY
OF
SOUTH AFRICA
Eighth
Respondent
GASSIEP INVESTMENTS
(PTY) LTD
Ninth
Respondent
________________________________________________________
CORAM:
Binns-Ward,
J
JUDGMENT
:
A.G.
Binns-Ward,J
DATE
OF HEARING
:
15
April 2010
DATE
OF JUDGMENT
:
3
May 2010
FOR
APPLICANT:
Adv
J A Newdigate, SC et Adv D Borgström
INSTRUCTED
BY:
Cliffe
Dekker Hofmeyr Inc
(Mr
L Egypt)
ADV.
FOR FIRST &
SECOND
RESPONDENTS:
Adv R T Williams,SC et Adv A Erasmus
INSTRUCTED
BY:
The
State Attorney
(C J
Benkenstein)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case No. 26841/09
In the matter between:
410
VOORTREKKER ROAD
PROPERTY
HOLDINGS CC
Applicant
and
MINISTER OF HOME AFFAIRS
First
Respondent
THE DIRECTOR GENERAL OF THE
DEPARTMENT OF HOME AFFAIRS
Second Respondent
MINISTER OF PUBLIC WORKS
Third Respondent
MUNICIPALITY OF CAPE TOWN
Fourth
Respondent
INVICTA PROPERTIES (PTY) LTD
Fifth
Respondent
SNACK TIME PROPERTIES CC T/S SANTOS
Sixth Respondent
INTERSITE
PROPERTY MANAGEMENT
SERVICES
(PTY) LTD
Seventh Respondent
PASSENGER
RAIL AGENCY OF
SOUTH
AFRICA
Eighth Respondent
GASSIEP
INVESTMENTS (PTY) LTD
Ninth Respondent
JUDGMENT DELIVERED ON 3 MAY 2010
BINNS-WARD J:
The influx of large numbers of political and economic
refugees into this country during recent years is a well enough
known phenomenon
to render a description of it in this judgment
unnecessary. As happens in such situations, it has given rise to
peculiar social
and economic problems within the host country. The
issues connected with the phenomenon are neither unique, nor
unprecedented,
and in some respects they have international
repercussions; which no doubt explains the existence of a range of
international
legal instruments to address these matters.
The long title and preamble of the
Refugees Act 130 of
1998
reflect the object of the statute as being to give effect
within the Republic of South Africa to this country’s
obligations
consequent upon its accession to the 1951 (United
Nations) Convention Relating to the Status of Refugees, the 1967
(United Nations)
Protocol Relating to the Status of Refugees and the
1969 Organisation of African Unity Convention Governing the Specific
Aspects
of Refugee Problems in Africa, ‘as well as other human
rights instruments’.
1
An important consequence of the Act is that, subject to the
qualifications set out therein, no person qualifying for asylum
as a
refugee may be refused entry to the Republic, or expelled,
extradited or returned to any other country. An essential component

of the effective administration of the Act is the provision of
facilities to process the applications of the large numbers of

people entering the country allegedly as refugees so as to be able
to determine which of them, apparently a minority, properly
qualify
for asylum.
2
The establishment of such facilities is provided for in terms of
s 8
of the Act.
Section 8
of the
Refugees Act provides
:
8(1)
The
Director-General may establish as many Refugee Reception Offices in
the Republic as he or she, after consultation with the Standing

Committee, regards as necessary for the purposes of this Act.
(2)
Each
Refugee Reception Office must consist of at least one Refugee
Reception Officer and one Refugee Status Determination Officer
who
must-
(a) be officers of the Department,
designated by the Director-General for a term of office determined by
the Director-General; and
(b)
have
such qualifications, experience and knowledge of refugee matters as
makes them capable of performing their functions.
(3)
The
Director-General must, with the approval of the Standing Committee,
ensure that each officer appointed under this section receives
the
additional training necessary to enable such officer to perform his
or her functions properly.
Seven refugee reception offices have been established
in various centres throughout the Republic. One of these is in Cape
Town.
History shows that the location and equipping of the Cape
Town refugee reception office have given rise to problems of their
own. The relevant history has been narrated in a number of earlier
judgments of this Court: see in particular
Kiliko
and Others v Minister of Home Affairs and Others
2006 (4) SA 114
(C) and
Intercape
Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs
and Others
[2009] ZAWCHC 100
(24 June 2009)
.
3
In terms of the judgment given in the latter case, the Minister of
Home Affairs (who is cited in her official capacity as the
first
respondent in the current matter, the Director-General of the
Department being the second respondent) was interdicted from
using
certain premises at Airport Industria for the purposes of the
refugee reception office established in Cape Town. The order
made
by the Court was premised on findings that the conduct of the
refugee reception office at the given address was unlawful
because
it contravened the applicable zoning scheme regulations and, in
addition, gave rise to an irremediable nuisance.
The Department of Home Affairs was afforded a period of
three months to relocate the refugee reception office; and the
operation
of interdict granted was suspended to permit this.
4
The Department investigated a number of alternative sites for the
office and ultimately settled on one in Maitland. The office
opened
for business at its current address on 12 October 2009. Its
relocation to Maitland came as an unpleasant surprise
to some of its
immediate new neighbours. The owner of erf 24123, situate at
410 Voortrekker Road, Maitland, which is the
applicant in this
case - and, it would seem, several of its tenants - first
learned of the relocation when they were
confronted with some of the
chaotic consequences attendant on the first week of operations of
the reception office at the new
address. Salient amongst these were
traffic congestion and traffic-related lawlessness in Voortrekker
Road immediately outside
the applicant’s premises, tightly
packed lines of people queuing for admission to the office’s
premises blocking
the entrance to the applicant’s premises.
The area was strewn with litter. There were other unsatisfactory
consequences
attendant on the presence of large crowds of asylum
applicants without appropriate sanitation facilities in place to
cope with
the demands. In addition, a significant number of people,
desperate for their applications to be attended to, took to sleeping

on the pavement outside the applicant’s property, with
foreseeable adverse consequences for the condition of the
neighbourhood.
Some of the unwholesome consequences that attended
the opening of the refugee reception office at the Maitland address
are graphically
depicted in a series of photographs annexed to the
applicants’ founding papers. From the data imprints reflected
thereon,
it would appear that most of these photographs were taken
on 21 October 2009.
The current application was launched on 22 December
2009. In terms of the notice of motion, orders are sought:
‘
2. Declaring that the establishment and operation
of the Refugee Reception Centre (“the Centre”) by the
Department of
Home Affairs (“the Department”), situated
at Voortrekker Road, Maitland on the properties known as erven 24125,
24129,
24151 and 24165, Cape Town (“the properties”) is
unlawful on the grounds that:
2.1 It contravenes the permissible land uses of the
properties (and in particular erven 24151, 24165 and part of erf
24129) in terms
of the
Land Use Planning
Ordinance
15 of 1985 and the Fourth
Respondent’s zoning scheme;
2.2 It constitutes a common law nuisance; and
2.3 It constitutes an infringement of the constitutional
rights of the Applicant, their employees, invitees and tenants to
equality
(section 9 of the Constitution); dignity (section 10 of the
Constitution); freedom of movement (section 12 of the
Constitution); freedom of trade (section 22 of the Constitution)

and security of person (Section 23 of the Constitution).
3. Reviewing and correcting and setting aside:
3.1 The decisions of the Second Respondent, made at some
time before 12 October 2009, to establish the Centre on the
properties;
3.2 The decisions of the Second Respondent, the
Department and the Department of Public Works to lease the properties
from their
owners or beneficial occupiers; and
3.3 The decisions of the Second Respondent and the
Department to allow the continued unlawful operation of the Centre
after 12 October
2009.
4. Directing the First Respondent, Second Respondent,
and/or the Department to cease the activities of the refugee centre
at the
said address and to remove the said centre from the said
premises within one month of any order of this Court.’
The relief sought was predicated on the following
allegations in the founding papers:
That the use of part of the premises of the refugee
reception office infringed the applicable land use restrictions,
determined
in terms of the City of Cape Town zoning scheme
regulations, read with s 13 of the Legal Succession to the
South African
Transport Services Act 9 of 1989 (hereafter referred
to as ‘the SATS Act’).
That the decision to locate the office at the premises
in Maitland infringed the applicant’s right to fair and
reasonable
administrative action; in particular, because it had not
been preceded by appropriate consultation.
That the conduct of the business of the office on the
property gave rise to a legally cognisable private nuisance.
5
Arising from its assessment of the answering papers, the
applicant also argued at the hearing that the opening of the office
at
the Maitland address was
ultra vires
because it had not occurred pursuant to a decision by the
Director-General of the Department, which, so the applicant
contended,
was a requirement of
s 8
of the
Refugees Act.
6
Only the applicant and the first and second respondents
actively participated in the litigation. The third respondent (the
Minister
of Public Works) initially indicated an intention to oppose
the application, but subsequently decided to abide the decision of

the court. The City of Cape Town, which was cited as the fourth
respondent in its role as the local authority responsible in
terms
of s 39 of the Land Use Planning Ordinance 15 of 1985 (‘LUPO’)
for the enforcement of the applicable zoning
scheme regulations in
Maitland, also abided the decision of the court.
It is convenient to deal first with the issues of
compliance by the Department with s 8 of the Act and the
consequences of
any lack of consultation by the Department with the
applicant in regard to locating the office at the Maitland premises.
Compliance with
s 8
of the
Refugees Act
The
most relevant consideration in the making of any
decision in terms of s 8 of the Act is the provision of the
facilities
necessary to fulfil the purposes of the Act. In this
regard it is significant that the Director-General is required to
consult
with the Standing Committee for Refugee Affairs established
in terms of s 9 of the Act in respect of any decision to
establish
a refugee reception office. Regard may therefore be had
to the powers and duties of the Standing Committee, which are set
out
in s 11 of the Act, for an indication of the level of
considerations with which the Director-General must concern
him/herself
in making a decision in terms of s 8. It is
evident that the Committee’s role is to perform supervisory,
regulatory,
monitoring and advisory functions. Nothing in these
functions suggests that the Standing Committee should interest
itself in
the precise, rather than the general, geographical
location of any office which it might consider the Director-General
would
be justified in establishing.
A consideration of the
Refugees Act as
a whole does not
support the contention that the Director-General was required to
decide the precise location of any office established
in terms of
s 8 of the Act. In my view the considerations to be weighed by
the Director-General in deciding in terms of
s 8 whether to
establish an office lie at what might be called a macro-management
level of decision-making. A decision
by the Director-General in
terms of s 8 to establish an office in any city or region of
South Africa falls to be distinguished
from the consequent
micro-level management decisions as to the obtaining of premises to
house the office at such place. The
latter decisions follow upon an
originating decision to establish the office. They are consequences
of the decision to establish
an office within the meaning of s 8.
They are related to, but discrete from the antecedent establishment
decision. The
delegation by the Director-General of consequent
micro-level management decisions to subordinate ranks of
departmental management
would be entirely consistent with the
principles recorded in Part II of Chapter 1 of the Public Service
Regulations. Those principles
enjoin heads of department to
facilitate the effective and efficient management of departments by
means of appropriate delegations
and authorisations to employees in
the department.
7
Having regard to the basis for any decision by the
Director-General to exercise the power invested in him by
s 8
of the
Refugees Act, it
is evident that the considerations to which
he/she would have regard in deciding whether the provision of a
facility should be
made would be the number of asylum seekers to be
processed at any time and their geographic distribution within the
Republic.
The provision and training of the staffing resources
required by the Act to operate any such office would also be
material considerations;
as would, no doubt, the budgetary
implications. These considerations have little bearing on precisely
where in a particular
town or city in which it might be decided that
an office should be established, its premises should be located.
The latter consideration
would be only incidental to any decision to
establish an office and would not arise unless the antecedent
decision had been made.
8
It is evident from the history referred to earlier that
a decision to establish a refugee reception office in Cape Town had
been
taken several years ago. In the intervening years the business
of the office established in Cape Town has been conducted at a

number of different addresses within the City’s metropolitan
area. It is also apparent that the Department of Public Works,

rather than the Department of Home Affairs, was primarily
responsible for the provision of land and buildings to house the

activities of the Cape Town office at various of the places at which
the office has from time to time operated.
In the current matter it is in any event clear that the
Director-General played an active role in meetings with the local
authority
and other interested bodies in regard to the relocation of
the office from Airport Industria to Maitland. It is therefore
evident
that in this particular case he was party to the decision as
to where the office should be relocated. It does not follow,
however,
that he regarded the decision as one taken in terms of s 8
of the Act. Indeed the contention of the first and second
respondents
is that it was not. The contention is that the move to
Maitland involved the relocation of an existing office; not the
establishment
of a new office. In my view the contention is
well-founded. The evidence is to the effect that the then
Director-General of
Home Affairs established five refugee reception
offices throughout the country in terms of s 8(1) of the Act on
1 April
2000. The Cape Town office was one of these; and it
has remained in existence ever since.
Lack of consultation
Counsel for the applicant and for the first and second
respondents were agreed that the relocation of the Cape Town refugee
reception
office from Airport Industria to premises in Maitland
constituted administrative action within the meaning of the
Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’).
PAJA, of course, is the legislation the enactment of which is
enjoined
in terms of s 33(3) of the Constitution to give effect
to the fundamental right of everyone to administrative action that

is lawful, reasonable and procedurally fair. I shall treat later,
and separately, in connection with the land use issues, with
the
legality of the action in the substantive sense. It is convenient
first to consider whether, even it is assumed that the
relocation of
the office to Maitland complied with applicable land use legislation
and was therefore substantively lawful, the
action was nevertheless
vitiated by procedural flaws.
Procedurally fair administrative action generally
includes the right to notice of the proposed administrative action
to those
liable to be affected and the affording of a reasonable
opportunity to them to make representations. The entitlement to
procedural
fairness arises from s 3(1) of PAJA, which provides:
‘
Administrative
action
which materially
and adversely affects the rights or legitimate expectations of any
person must be procedurally fair.
’
It follows from this provision that the applicant’s
complaint that it was not consulted can arise for consideration only
if
the administrative action in question materially and adversely
affected its rights or legitimate expectations.
9
The only affected rights that the applicant identifies
in its papers are the right to require that land in the vicinity of
its
property should be used only for purposes permitted in terms of
the applicable town planning and land use laws and the right against

the use of neighbouring property for a purpose that gives rise to
nuisance.
The reference to ‘administrative action’ in
s 3(1) of PAJA denotes administrative action that is, or would
be
substantively lawful. If the purported administrative action in
question happens to be substantively unlawful, that unlawfulness,
by
itself, will afford the direct and more absolute basis for an
adversely affected party to impugn it; any procedural flaws
will be
irrelevant. Therefore, if the land is being used for the purposes
of a refugee reception office in breach of the applicable
zoning
scheme regulations, the failure by the first and second respondents
to consult with the applicant has no legal import.
No amount of
consultation could avoid the consequences of the unlawful user and
the applicant would in any event be entitled
to an interdict
prohibiting the unlawful conduct involved; see e.g.
BEF
(Pty) Ltd v Cape Town Municipality and Others
1983 (2) SA 387
(C) at 400-401 and
Esterhuyse
v Jan Jooste Family Trust
1998 (4) SA 241
(C) at 252C-I.
The duty to give notice and afford an opportunity to
make representations in respect of an intended lawful user of the
land in
question would arise in this case only if it could
reasonably be anticipated that the lawful user would nevertheless
give rise
to a nuisance, or some other cognisable adverse
consequence which might reasonably be avoided by the availment of
alternatives,
or the attachment of safeguarding conditions. In the
Diepsloot
case,
10
for example, the choice of land for the settlement of the
Zevenfontein squatters was lawful, but in the context of the
availability
of a number of alternative sites it would have been
unfair, having regard to the obviously foreseeable adverse
consequences of
the establishment of the township on the value of
neighbouring properties, to deny the affected neighbouring
landowners the opportunity
to make representations on the
appropriateness of the selection of the particular site. It is not
surprising therefore to find
on the facts of that case surrounding
owners were given an opportunity to make representations before the
relevant decision was
taken.
In the current case the Department understood that its
intended use of the properties was lawful and did not give rise to
cognisable
adverse consequences to the applicant. In the context,
however, of the contention, albeit advanced contingently and in the
alternative,
by the first and second respondents that their intended
use of the property for a refugee reception office constituted a
statutorily
authorised nuisance it is necessary to determine that
question in order to decide, should the alternative argument be
correct,
whether there was a duty on the Department to invite
representations notwithstanding the ostensibly lawful character of
the intended
user.
The facts of the
Diepsloot
judgment exemplify the operation of the principles of statutory
nuisance. As pointed out by the Appellate Division at 349 I

(SALR) of the
Diepsloot
judgment, ‘It must … have been within the contemplation
of the Legislature that the exercise by the Administrator
of his
powers … with regard to the settlement of homeless persons
might result in interference with the common law rights
of third
parties.’ The exercise of the power was nevertheless lawful
because ‘[I]nherent in the grant of such powers
is statutory
authority for any such interference.’
11
In the absence of any provision in the statutory
authority in question particularising exactly where the interference
in question
is permitted (cf.
Herrington
v Johannesburg Municipality
1909
TH 179
and
Tobiansky
v Johannesburg Town Council
1907
TS 134
12
),
administrative justice would in general require that the power be
exercised only after a process of consultation with those
whose
rights are liable to be materially and adversely affected thereby.
(Statutory authority can never grant a licence to cause
foreseeable
harm to third parties that could, by the taking of appropriate
measures, reasonably be avoided or mitigated; cf.
Local
Transitional Council of Delmas and Another v Boschoff
[2005] ZASCA 57
;
[2005] 4 All SA 175
(SCA) at para. 25.)
As mentioned, in the current matter counsel for the
first and second respondents submitted that if the conduct of the
refugee
reception office at the Maitland premises gave rise to a
cognisable nuisance (which was denied), then such nuisance was
authorised
by statute. The argument was a self-defeating
undertaking because it follows on what has been stated above that if
the statute
does, by its provision for the establishment of refugee
reception offices, afford statutory authority for the creation of
attendant
nuisance, there would then have been a duty on the
respondents to have complied with s 3(2) of PAJA,
13
unless a departure therefrom could be justified in terms of s 3(4).
14
In the context of the contingent defence of statutory
authority advanced by the respondents, the relevant enquiry was
described
as follows by Innes CJ in
Johannesburg
Municipality v African Realty Trust Ltd
1927
AD 163
at 171-2: ‘
Whenever
the exercise of statutory powers is alleged to have resulted in
injury to another the enquiry must always be - what was
the
intention of the Legislature? Did it intend that immunity from
consequences should accompany the grant of authority, or
did it
intend that the authority should either not be exercised at all to
the legal prejudice of others, or that if so exercised
there should
be an accompanying liability to make good any consequential damage?’
In order to ascertain whether the
Refugees Act provides
statutory authority to create a nuisance in respect of the
establishment of refugee reception offices it is necessary to
consider
the provisions of the Act as a whole, as well as its
purpose. The exercise is one of construction. In undertaking it I
find
nothing in the Act that expressly or impliedly authorises the
exercise of the power to establish refugee reception offices in any

manner or any locality so as to impose adversely on the rights of
third persons. Nothing in the nature of the functions to be

discharged by such offices necessarily implies that the enjoyment by
owners of neighbouring properties should be exceptionally
affected
thereby. There is nothing in the Act to suggest that the operation
of refugee reception offices should in relevant
respects be any
different from that of many other government offices, such as, for
example, those responsible for the issue of
passports and identity
documents, or the payment of pensions and allowances. On the
contrary, the establishment of refugee reception
offices in terms of
s 8 of the Act falls to be contrasted with the provisions of
s 35 of the Act, which appear to be
directed at regulating the
exceptional reception of refugees in the event of a mass influx. It
is not necessary to make a finding,
but it seems to me that whereas
the designation by the Minister of centres for the temporary
reception and accommodation of refugees
in terms of s 35 might
arguably give rise to a situation of statutory authority akin to
that found to exist in the
Diepsloot
judgement, supra, the provisions of s 8, which authorise the
establishment by the Director-General of refugee reception
offices
in the ordinary course, do not.
15
If the management of a refugee reception centre is
undertaken reasonably in an appropriately zoned locality it should
not give
rise to an unreasonable interference with the rights of
neighbours. In the current matter it is conceded by the applicant
that
the erf on which the reception office is substantially housed
(erf 24129), and which is zoned General Commercial 2 in terms of
the
City of Cape Town zoning scheme regulations, is appropriately zoned
for the land uses entailed in the operation of the facility.
(To
the extent that erf 24129 might be subject to a ‘split
zoning’, I do not think that the zoning of the part which

would not be General Commercial 2 has been established. For present
purposes I have therefore treated the entire erf as zoned
General
Commercial 2. As will be apparent even if I am wrong in this
regard, the result of the application is not affected thereby.)
The
applicant’s allegation of an infringement of applicable land
use restrictions pertains only to erven 24165 and 24151,
which
accommodate a parking lot, drop off area, outside lavatories
(so-called ‘portaloos’) and a shed used as a waiting
and
sorting area from which asylum applicants are directed into the main
building on the adjoining erf 24129. (It seems that
what the
applicant described as erf 24151 actually includes a small area in
fact separately designated as erf 24150.)
In my judgment there is no merit in the respondents’
contingent reliance on statutory authority to create a nuisance.
Rogers
AJ’s
obiter
remarks in the
Intercape Ferreira
case, supra, at para. [146], suggest that he too was, at least
prima
facie
, of the same opinion.
16
In
Intercape Ferreira
the question of nuisance was approached by the court ‘in the
ordinary way’. As a consequence of the finding made
on the
issue of statutory authority, the same approach will be adopted in
the current matter. (Inherent in these findings is
a rejection of
the argument by the applicant’s counsel that legally
cognisable adverse consequences on the neighbours of
the operation
of any refugee reception office are unavoidable and foreseeable.
Indeed, it was impossible to reconcile that argument
with the
applicant’s equally strongly advanced contention that nothing
in the
Refugees Act licensed
the creation of a nuisance.)
In the context of the finding that there is nothing
about the establishment of a refugee reception office in terms of
s 8
of the Act on appropriately zoned land which, of itself,
infringes third party rights, the applicant has not persuaded me
that
it enjoyed a right to be given notice of the decision to locate
the office on the Maitland property or the opportunity to make

representations.
The lawfulness of the use of the Maitland premises in
terms of the zoning scheme regulations
As mentioned, apart from an access driveway running
over part of erf 24125, the refugee reception office in Maitland
occupies
three erven: erf 24129, which is zoned Commercial 2, and
erven 24165 and 24151 (including erf 24150) in respect of which the

applicable land use restrictions in terms of the zoning scheme are a
matter of dispute between the parties. The uses to which
erven
24165 and 24151 are put have already been described.
17
Erven 24165 and 24151(including erf 24150) are the property of the
Passenger Rail Agency of South Africa, which is the current
name of
the Corporation – previously known as the South African Rail
Commuter Corporation - established in terms of s 22
of the SATS
Act. I shall hereafter refer to these erven as ‘the railway
properties’.
It is common ground between the parties that the land
use rights applicable to the railway properties are determined with
reference
to s 13 of the SATS Act.
18
Section 13 of the SATS Act is a somewhat complicated provision, an
understanding of which has not been assisted by its history
of
amendment and substitution. Its object, as its current heading
suggests, has always been the integration of land owned by
the late
South African Transport Services into ‘conventional land use
control systems’.
The provision, as originally enacted, was amended in a
respect not currently relevant in terms of
s 69(1)
of the
General Law Amendment Act 129 of 1993
. The Amendment Act came into
effect in September 1993, but the relevant amending provision was
deemed to have been in effect
from 1 April 1990, the date upon which
the relevant parts of the SATS Act itself had come into operation.
In terms of s 1
of the Legal Succession to the South African
Transport Services Amendment Act 43 of 1995, the provisions of s 13
of the
SATS Act, as they then were, were substituted by an entirely
reformulated provision. The substitution took effect on 23
September
1995 (with retrospective effect in material respects from
1 April 1995).
Prior to its substitution in 1995, s 13 provided:
Section 13 - Property Development
(1) Subject to the provisions of subsection (2), the
Company
19
shall be entitled, up to a date five years after the date referred to
in section 3 (1), to develop, to cause to be developed, to
use and to
let its immovable property for any purpose, including the
construction and exploitation of buildings and structures
for
commercial purposes, notwithstanding the fact that the immovable
property concerned is either not zoned or is zoned or intended
for
other purposes in terms of an applicable township construction or
development scheme, guide plan or statutory provision.
(2) Immovable property may be developed in terms of
subsection (1) only-
(a) after an agreement has been reached with the local
authority concerned; or
(b) should such agreement not be reached, in terms of
permission granted by the Administrator of the province concerned
subject
to such conditions as he may consider appropriate; or
(c) should the development be in conflict with an
approved guide plan, with the approval of the Administrator referred
to in section
6A (12) of the Physical Planning Act, 1967.
(3) The local authority-
(a) with which an agreement is reached in terms of
subsection (2) or with which an agreement was reached in terms of
section 9 (26)
of the South African Transport Services Act, 1981,
prior to the operative date of this Act; or
(b) which exercises jurisdiction over property in
respect of which permission or approval is obtained in terms of
subsection (2)
from the Administrator concerned,
shall record, in connection with the use of the
immovable property agreed upon or in respect of which permission or
approval is
obtained in terms of subsection (2), a suitable zoning
for such immovable property, whereafter such zoning shall be regarded
as
the zoning of the property for all purposes.
After the aforementioned legislative substitution, s 13
provided (insofar as currently relevant):
Section 13 Integration of Company's land into
conventional land use control systems
(1) In this section-
(a) 'ancillary uses' means the use of land, a building
or a structure which is ancillary to the transport uses of such land,
building
or structure, or which is directly related to or incidental
to serving the interests of the commuting public, including the use

of such land, building or structure for offices, shops and
recreational, business and residential purposes;
(b) 'competent authority' means any person or body
administering a zoning scheme in terms of any law;
(c) 'effective date' means 1 April 1995;
(d) 'existing use' means the actual use of land owned by
the Company as at the effective date;
(e) 'other zone' means any land use zone in terms of a
zoning scheme within the operation of which the land in question is
situated,
and which is not a land use zone permitting specifically
transport uses or ancillary uses;
(f) 'transport uses' means the use of land, a building
or a structure for the operation of a public service for the
transportation
of goods (including liquids and gases) or passengers,
as the case may be, by rail, air, road, sea or pipeline, including
the use
of such land, building or structure as a harbour,
communication network, warehouse, container park, workshop, office or
for the
purposes of security services connected with the aforegoing;
(g) 'zoning scheme' means any town planning or zoning
scheme administered by a competent authority relating to the zoning
or reservation
of land into areas or zones to be used exclusively or
mainly for residential, business, industrial, local authority,
governmental
or any other purposes.
(2) As from the effective date, all land owned by the
Company and shown on maps of a competent authority or otherwise
described
in terms of a zoning scheme-
(a) as land used generally for transport or railway or
harbour or pipeline purposes or related activities, but which is not
so shown
or described as being part of any other zone, shall be
deemed to have been zoned for transport uses in terms of such zoning
scheme
as of right and without having to obtain the consent of any
competent authority;
(b) as being part of any other zone, shall be used in
accordance with the uses which are permitted in respect thereof and
be deemed
to have been zoned also for transport uses in terms of such
zoning scheme as of right and without having to obtain the consent of

any competent authority.
(3) As from 12 months after the effective date, the land
referred to in subsection (2) shall also be deemed to have been zoned
for
ancillary uses in terms of the zoning scheme in question as of
right and without having to obtain the consent of the competent
authority in question.
(4) (a) Any competent authority contemplated in
subsection (2) shall-
(i) with effect from the effective date, be deemed to
also have consented in terms of an applicable zoning scheme to
existing uses
if the existing uses at that date exceed the ambit of
uses permitted in terms of subsection (2); and
(ii) with effect from 12 months after the effective
date, be deemed to also have consented in terms of an applicable
zoning scheme
to existing uses if the existing uses at that date
exceed the ambit of uses permitted in terms of subsections (2) and
(3).
(b) The onus of proving existing uses shall be on the
Company.
(c) The competent authority in question shall classify
any proven existing uses in terms of the land use zones provided for
in terms
of the applicable zoning scheme and the classification shall
be deemed to be a zoning of the land for all purposes.
(d) In addition to any such existing uses, any use which
is not an existing use but which falls within the scope of uses
permitted
in relation to the relevant land use zone into which the
existing use has been classified, shall also be permitted in relation
to the land in question without further consent being required:
Provided that any major expansion of an existing use in respect
of
the extent of the floor area or of the intensity of the existing use
shall require the prior consent of the competent authority
in
question.
(5) (a) Subsections (2), (3) and (4) shall not apply to
land owned by the Company in respect of which a local authority was,
in
terms of section 13 (3) as it applied prior to the date of the
commencement of the Legal Succession to the South African Transport

Services Amendment Act, 1995, obliged to record a suitable zoning,
and such local authority shall, to the extent that such recording
was
not yet effected as at that date, remain so obliged.
(b) Any recording effected pursuant to the said section
13 (3) or paragraph (a) shall be deemed to be a zoning of such land
for
all purposes.
(6) …..
(7) …..
The first and second respondents adduced evidence by a
commercial and industrial property broker who has been familiar with
the
area in which the railways properties are situate for more than
20 years. On the basis of this evidence it may be accepted that
the
railway properties have been leased and used as private parking lots
for at least 15 years. The shed on one of the properties
that is
currently used as a waiting and sorting area by the refugee
reception office would appear to have been used at some undetermined

time as a workshop and office by a trucking company, which sublet
the property.
With reference to the historic use of the railway
properties just described, the respondents’ counsel submitted
that ‘commercial
use rights’ for zoning purposes had
accrued in terms of s 13 of the SATS Act, as the provision read
before its substitution
in 1995. Counsel further submitted that the
historic use of the property gave rise to use rights as ‘existing
uses’
within the meaning of s 13(4) of the provision as
substituted. The applicant’s counsel contended on the other
hand
that the use rights in question would have become integrated in
the properties’ land use restrictions in terms of the
applicable
zoning scheme only if there had been an agreement between
the South African Rail Commuter Corporation and the City of the
nature
contemplated in terms of s 13(2) of the SATS Act, as it
read prior to substitution. The Applicant’s counsel submitted

that as there was no evidence of the conclusion of a relevant
agreement between the Commuter Corporation and the City, the

applicable land use restrictions were ‘transport uses’
and ‘ancillary uses’ as defined in the substituted

s 13(1).
The effect of the initially applicable version of s 13
of the SATS Act was that the zoning of affected land fell to be
determined
by agreement with the local authority, subject to the
overriding say of the Administrator in the event that such agreement
could
not be reached. The substituted s 13 conserves the
effect of any agreement reached under the initially created regime;

see s 13(5). The zoning of land in respect in which an
agreement in terms of the initially applicable version of s 13

had not been concluded falls to be determined in terms of
s 13(2)-(4) of the currently applicable version of s 13 of

the SATS Act. The result is that the railways properties are zoned
for ‘transport uses’ and ‘ancillary uses’,

as defined in s 13(1) of the SATS Act in its current form, and
that they may, to the extent justified by the facts, in addition
be
used for ‘existing use’, as defined in s 13(1)(e).
The evidence establishes as a matter of probability
that the railway properties were being used for parking lot and
related purposes
as at 1 April 1995 (being the ‘effective
date’ as defined in the substituted s 13(1)).
Accordingly their
use for those purposes by the Department of Home
Affairs is authorised as an ‘existing use’ by the
provisions of
s 13(4)(a) of the SATS Act. That conclusion does
not hold true, however, for the use of the shed as a waiting room
cum
sorting area; nor
does it permit the use of the properties as a holding area for
persons queuing to obtain entry to the shed.
It also does not
permit the use of the properties to provide toilet facilities to
persons waiting for attention in the refugee
reception office.
The notion that the fact the owner of the railways
properties used them ‘commercially’ by leasing them to
be put to
the various historic uses described earlier does not give
rise to a use right to lease the property for any use (as I
understood
the respondents’ counsel to contend). The
expression ‘existing use’ in s 13(4) has a narrow
connotation;
namely one relating to actual physical use. The
evidence does not establish whether part of the shed was being used
as an office
as at 1 April 1995. It is therefore not necessary
to decide whether, if it did, that would permit the use of the
structure
for the purpose to which the Department is putting it
today.
It remains to be considered whether the use of the shed
qualifies as an ‘ancillary use’ as defined in s 13(1)
of the SATS Act, as also contended by the respondents’
counsel. In this connection counsel stressed what she submitted
was
the open-ended effect of the phrase ‘
including
the use of such land, building or structure for offices, shops and
recreational, business and residential purposes’ (the
word
‘including’ is underlined to convey the non-exclusive
connotation of the participle emphasised in the argument).
The
phrase is nevertheless limited by its context. The context has the
effect of confining ‘ancillary uses’ to
a broad category
of uses ‘directly related to or incidental to serving the
interests of the commuting public’. The
‘commuting
public’ is itself a concept that if it were not construed
contextually could embrace almost the entire
public, or at least
that part of it which travels regularly from home to work. It would
not however be consistent with either
the basic tenets of statutory
construction, or the apparent object of the provision to construe
the term in that way. In respect
of land owned by the South African
Railway Commuter Corporation, the term must be confined to that
portion of the public that
habitually or regularly uses the railway
network for commuting purposes. In this regard it perhaps bears
mentioning that the
verb ‘commute’ denotes ‘to
travel some distance between one’s home and place of work on a
regular basis’.
20
A wide variety of uses can readily be conceived that
would qualify as directly related to or incidental to serving the
interests
of that part of the general public. It is obvious,
however, that a refugee reception office is not one of them. That
is not
the sort of facility that any member of the public will
ordinarily use as an incidence of his/her regular journey to and
from
work. The persons attending on the refugee reception office,
if they use the railway network (or indeed any other mode of
transport)
to travel there, will in the vast majority of cases be
embarked on a special journey for a narrowly dedicated purpose. On
the
evidence it would be a journey that, if they are efficiently
attended to, they should not have to undertake on more than a few

occasions, with intervals between each trip of several months.
In the result the applicant’s complaint about the
unlawful use of the railways properties, in contravention of the
applicable
zoning scheme, is well made. It follows that the
applicant is entitled to interdictory relief prohibiting the
continued unlawful
use of the railway properties by the respondents.
It is apparent that the use of the railways properties
for the purposes to which they are being put is essential to the
operation
of the refugee reception office in a manner that would
seek to avert the irremediable nuisances identified in the
Intercape
Ferreira
judgment in connection with the
operation of the office at the premises formerly occupied by it at
Airport Industria. Indeed
it is evident that the Maitland premises
were carefully selected by the Department with a view to avoiding
the critical shortcomings
of the previous address. In this respect,
the railway properties afforded off road space where a large number
of vehicles could
be parked, and in which taxi drop offs could be
accommodated. They also afforded off road space where persons
queuing for admission
to the office could stand without interfering
with ingress to neighbouring properties. If the current use of the
railways properties
cannot be regularised in terms of the applicable
land use regulations, it is clear that the refugee reception office
cannot continue
to operate at the current address without causing an
unacceptable nuisance to the owners and occupants of the surrounding
properties,
including the applicant. The use of the railways
properties is therefore an integral feature of the operation of the
refugee
reception office.
The court’s power to suspend the operation of
an interdict
Counsel on both sides appeared to accept that it was
within the court’s power to suspend the operation of any
interdict
granted against the respondents so as to afford the latter
the opportunity to take steps to redress the unlawfulness that gave

rise to the interdict; either by an orderly relocation, or by
obtaining an appropriate amendment of the currently applicable
land
use restrictions (see
Laskey and Another v
Showzone CC and Others
2007 (2) SA 48
(C) at
para.s [40] – [46],
Intercape Ferreira
at para. [184] and
Bitou Local
Municipality v Timber Two Processors CC and Another
2009 (5) SA 618
(C) at para. [31]). In the latter case,
however, Fourie J held (at para. [32]) that ‘in the
event of a
court finding that a respondent is guilty of criminal
conduct, … no discretion exists (except possibly where the
contravention
may be regarded as
de minimis
)
to suspend the operation of a final interdict prohibiting such
conduct’.
21
The learned judge proceeded ‘I am in respectful agreement
with the decisions in
United Technical
Equipment Co (Pty) Ltd
22
.. and
Nelson Mandela Metropolitan
Municipality and Others v Greyvenouw CC
23
….
As held by Harms J in the first-mentioned case, the suspension of an
interdict in these circumstances would be tantamount
to a court
abrogating its duty as an enforcer of the law.’
24
The infringements involved in the current case cannot
properly be regarded as
de minimis
.
If the
dictum
of
Fourie J in
Bitou
is
a correct statement of the law then, because the use of land in
contravention of the applicable zoning scheme regulations is
a
criminal offence (in terms of s 39(2) read with s 46(1)(a)
of LUPO), I would, notwithstanding the provisions of Uniform
Rule
45A,
25
not have the power to suspend the operation of the interdict to
which the applicant is entitled. Counsel’s agreement that

there should be such a suspension would not cure the incapacity.
The judgment in
Bitou
,
which was reported some months after judgment was delivered in the
Intercape Ferreira
case, does not appear to have been drawn to the attention of the
learned judge in the latter case. It will be recalled that
in
Intercape Ferreira
the court, having found that the use of the land in issue in that
matter was in contravention of LUPO, suspended the operation
of the
prohibitory interdict that followed for three months to enable the
Department to make alternative arrangements for the
housing of the
refugee reception office. It is nevertheless evident that Rogers AJ
was acutely conscious that the order
suspending the interdict could
be seen ‘as condoning the perpetuation of unlawful behaviour’
and that he should therefore
be circumspect in granting the
indulgence. The learned judge considered however that ‘in the
very special circumstances
of this case…a modest extension
would be appropriate, not so much because the Department by its
conduct has deserved an
indulgence but in the interests of asylum
seekers’. He evidently accepted that the court was vested
with the discretionary
power to temper the effect of the interdict
to meet the justice of the case despite the fact that the conduct in
question was
susceptible to sanction in criminal proceedings. If
Fourie J’s approach is sound in law, there can be no
doubt that
the court in
Intercape Ferreira
acted beyond its powers in suspending the operation of the interdict
granted.
Both sides in the current case accepted that in the
context of any finding by this court adverse to the respondents, the
exigencies
of the operation of a refugee reception office in Cape
Town – a facility demonstrably essential for the proper
discharge
of the country’s obligations in terms of the
Refugees Act
- enjoined the granting of a period of time for the
Department to regularise the situation, either by finding
alternative premises,
or by bringing the operation of its current
premises within the law. The repercussions that would ensue upon an
immediate closure
of the reception office upon the granting of an
interdict would, apart from putting South Africa in breach of
international obligations
(with which it is obliged by s 231 of
the Constitution to comply), also include the exposure of an
indeterminate number
of asylum seekers to arrest and possible
deportation before their applications for asylum could be submitted.
In this case the
immediate operation of the interdict to address
the unlawfulness of a given land use would give rise to the
potential for a different
type of unlawfulness, one bearing
centrally on basic human rights. The facts in the
Bitou
case did not confront the judge with such a difficulty. It is
therefore necessary to examine the question of whether the statement

in
Bitou
concerning
the ambit of the court’s power to suspend the commencement of
the operation of an interdict is correct.
In
Bitou
the court refused the respondent’s request to suspend the
prohibitory interdict granted to the applicant, so as to afford
the
respondent an opportunity to obtain a rezoning of its land to
regularise the use thereof. There is no basis to criticise
the
result.
26
I find myself in respectful disagreement, however, with Fourie J’s
statement of the law to the effect that a discretion
of a court to
suspend an interdict is excluded where the conduct in question
appears to make out the elements of a criminal offence.
The learned
judge appears to have considered that the
United
Technical Equipment
and
Nelson
Mandela Metropolitan Municipality
judgments
afforded authority for the proposition. That is not so. The
relevant views expressed by the learned judges
27
in those cases that were philosophically supportive of Fourie J’s
approach were expressed
obiter
.
Both cases were in fact decided on the basis of an assumption that
a discretionary power to suspend the interdict indeed subsisted.
The judgment in
Bitou
does acknowledge the existence of judgments going the other way:
CD
of Birnam (Suburban) (Pty) Ltd and Others v Falcon Investments Ltd
1973 (3) SA 838
(W);
Huisamen and Others v
Port Elizabeth Municipality
1998 (1) SA 477
(E) ([1997]
2 All SA 458)
were cited. Coincidentally, both of those
judgments resulted in orders temporarily suspending the operation of
interdicts granted
to prohibit the use of land in contravention of
the applicable zoning restrictions. In
Huisamen
,
which also concerned conduct constituting an offence in terms of
s 39(2) read with s 46(1) of LUPO, Leach J (as
he
then was) referred to those provisions at 483I-484B. Despite
mentioning that it was ‘debateable’ whether a court
had
a discretion to
refuse
an interdict where the conduct in question would constitute an
offence ‘unless the contravention may be said to be
de
minimis
’, the learned judge (Kroon and
Mpati JJ concurring) had no difficulty in suspending the
interdict granted to enable
the respondent ‘to make
alternative arrangements’. In
CD of
Birnam
, in which both sides were represented
by senior counsel, the judgment suggests that extensive
consideration must have been given
to the legislation pertinent in
the matter, and the ambit of the court’s discretionary powers
in regard to interdictory
relief was identifiably a matter in issue
in argument. Although the fact the conduct in issue was susceptible
to penal sanction
was not mentioned in the judgment, I consider it
unlikely in the circumstances that the court would have been unaware
of that
consideration.
It seems to me, with respect, that the distinction
between the
refusal
of an interdict in a matter in which the impugned conduct on the
face of it constitutes a criminal offence and the
suspension
of an interdict in such a case may be material. As I pointed out in
Laskey
, supra, at
para. [45], the authority to which Harms J referred in the
discussion in
United Technical Equipment
at 346-7 was more concerned with the mootness of the court’s
discretionary power to refuse a final interdict when an applicant

had satisfied the requirements for such relief.
28
On the question of the court’s power to temporarily suspend
the operation of such an interdict, even the
dictum
in the judgment in
Peri-Urban Areas Health
Board v Sandhurst Gardens (Pty) Ltd
1965
(1) SA 683(T), referred to at 346J-347A of
United
Technical Equipment
, was uttered relying on
certain
dicta
of
Broome J in
Ostrawiak v Pinetown Town
Board
1948 (3) SA 584
(D) at 590-1, which
afforded no clear authority for the proposition that the
commencement of the operation of an interdict may
not be suspended
where the conduct involved is susceptible to penal sanction. It was
the peculiar facts of those matters, judged
in the context of legal
policy considerations, that in both the
Peri-Urban
Areas Board
and the
Ostrawiak
cases evidently determined the decisions by the court not to accede
to the request to suspend the commencement of the interdicts

granted. In my respectful view it was perhaps not surprising
therefore that in
United Technical Equipment
Harms J chose in the end to leave the
question open.
The granting of an interdict prohibiting unlawful
conduct is entirely inconsistent with any notion of condoning the
conduct.
On the contrary, the grant of the interdict is an
unambiguous condemnation of the unlawful conduct. A temporary
suspension of
operation of the interdict does not derogate from the
condemnation implicit in its grant, nor, if the conduct in question
renders
the interdicted party subject to criminal prosecution, does
it absolve that party from prosecution. The decision whether or not

to institute a prosecution is also a discretionary one (and it
should not be overlooked for present purposes that the discretion
in
question does not resort in the court, but falls to be exercised
discretely by an independent prosecuting authority).
Section 179 of the Constitution provides for the
determination by the National Director of Prosecutions, after
consultation with
the Directors of Public Prosecutions, and with the
concurrence of the Cabinet member responsible for justice, of
prosecution
policy.
29
Paragraph 4(c) of the Prosecution Policy is instructive in the
relevant respect.
30
It sets out ‘There is no rule in law which states that all
the provable cases brought to the attention of the Prosecuting

Authority must be prosecuted. On the contrary, any such rule would
be too harsh and impose an intolerable burden on the prosecutor
and
on a society interested in the fair administration of justice.’
The paragraph continues by identifying a non-exhaustive
list of
factors to be considered in the determination whether a prosecution
should be instituted. It is unnecessary to enumerate
them here.
Suffice it to say that it is evident that in the ultimate analysis
the determination of whether a prosecution should
ensue on the basis
of the availability of evidence suggesting
prima
facie
the commission of an offence is a
discretionary function to be exercised with due regard to the
interests of justice. It seems
illogical and unsupportable in
principle that a court should be constrained to follow an inflexibly
non-possumus
approach
in respect of the suspension of the operation of interdicts simply
because the conduct in question makes out the elements
of an
offence, when no such constraints fetter the authority responsible
for the indictment of criminal offenders. I am not
aware of
anything in the constitutional framework that would support the
existence of such a legal paradox.
The exclusion of discretionary power suggested in the
Bitou
judgment is
certainly not reflected in the dispensations obtaining in England or
Australia; especially in respect of injunctions
granted for
contraventions of land use regulation and planning laws. Cf. e.g.
Wrexham County Borough Council v Berry
[2003] UKHL 26
[2003] 3 All ER 1
(HL) at para.s 27-29;
Warringah
Shire Council v Sedevcic
(1987)
10 NSWLR 335
(per
Kirby P, as he then was) and
NRMCA (Qld)
Ltd v Andrew
(1993)
2 Qd R 706
(CA).
31
I mention this conscious of the material differences between the
peculiar legal frameworks in effect in those jurisdictions
in which
orders suspending the commencement of injunctions have been granted
32
and that which is in place here. The point remains, however, that
notwithstanding
dicta
in many cases in those jurisdictions which reflect a consciousness
by the judges that the grant of any such dispensation must
be
weighed carefully in the balance with the need to enforce the law,
rather than to appear to tolerate its infringement,
33
the grant of a suspension of an injunction is not considered,
without more, or by itself, to be inimical to, or inconsistent
with
the rule of law.
It was a concern going to the rule of law, and the duty
of the courts to uphold it, that appears to have inspired the
contrary
approach in
Bitou
.
It is undeniably a relevant concern; and one that no doubt explains
why in those cases in which interdicts have been suspended
it is
apparent that the decision has not been taken lightly or without
careful deliberation. The supremacy of the Constitution
and the
rule of law are amongst the founding values of the democratic South
Africa. In terms of s 165(2) of the Constitution
the courts
are bound to apply the Constitution and the law impartially and
without fear or favour. This obligation is reflected
in the oath or
affirmation of office which judicial officers must make before
beginning to perform their official functions.
34
It is apparent, however, from the text of the
Constitution itself that nothing about these obligations unduly
inhibits the capacity
of the courts to administer the law
practicably, fairly and justly in the interest of justice. Thus in
terms of s 172(1)
of the Constitution –
(1) When deciding a constitutional matter within its
power, a court-
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including-
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority to
correct the defect.
The concept of ‘a constitutional matter’
has been widely construed. In the current case the issue that has
given
rise to this application is the manner in which the Department
of Home Affairs is discharging its statutory obligations in respect

of the provision of refugee reception offices within the Republic.
The identified infringement of the zoning scheme regulations
has
occurred in the context of the Department’s discharge of that
function. The Department is obliged to discharge its
functions
subject to the principle of legality. Its infringement of the
applicable zoning scheme regulations in the current
case is not only
a contravention of s 39(2) of LUPO, but also constitutes
conduct in breach of the Department’s constitutional

obligation to exercise its powers and functions subject to and
within the limits of the law. The purported discharge of its

functions by operating a refugee reception office in a place where
such operation is prohibited by the applicable statutory land
use
restrictions is unconstitutional and consequently invalid within the
meaning of s 172(1) of the Constitution.
35
The court is expressly empowered by s 172(1)(b) of the
Constitution, consequent upon a finding that any conduct is
inconsistent
with the Constitution, to ‘make any order that is
just and equitable’. Any such order must be directed at
bringing
the unlawful conduct to an end, but there is nothing to
suggest that the court’s ability to effect that object should
exclude
the provision of an interval for the breach to be rectified
in an orderly manner should considerations of practicality and
fairness
so commend. On the contrary, the power granted to the
court in terms of s 172(1)(b)(ii) to suspend any order
declaration
of invalidity for any period and on any conditions to
allow the competent authority to correct the defect points the other
way.
Compare also the wide powers afforded the court in terms of
s 8 of PAJA to make any order that is just equitable consequent

on the judicial review of administrative action.
If I am misdirected in characterising the issue as a
constitutional matter within the meaning of s 172(1) of the
Constitution,
I consider that as the court is entitled in a
constitutional matter to make any order that is just and equitable,
including an
order suspending the effect of a declaration of
invalidity, then,
a fortiori
,
it can do so when the legal implications are of a more general
nature. In my view this must be so having regard to the
Constitution’s
role as the supreme law in the legal order and
to the fact that the validity of all law in this country depends on
its consistency
with the Constitution.
Justice and equity enjoin regard to the particular
characteristics of the case in the determination of appropriate
relief. As
Harms J observed in
United
Technical Equipment
at 347, it is accepted
on any approach that compliance with an order might require time;
and a court will not make an order that
cannot be complied with. In
my view, trying to distinguish between a decision delaying the issue
of an interdict because of
practical considerations bearing on the
degree of its immediate remedial necessity, as was done in the
matter of
Rivas
v
The
Premier (Transvaal) Diamond Mining Co Ltd
1929 WLD 1,
and deciding to suspend the commencement of the operation of an
interdict because of the practical exigencies,
as was done in
Intercape Ferreira
,
is to essay a distinction of principle where there is no difference.
In many cases the questions of the ability of the
respondent to comply with the order, or the immediacy of the
applicant’s
need for effective relief will be ones of degree.
Immediate compliance might be possible in an absolute sense, but the
consequences
of an insistence thereon so unreasonable as to
demonstrate effective unfeasibility. In another case the basis for
an apprehension
of harm justifying the grant of an interdict might
be established, but the likelihood of its actual occurrence in the
immediate
term might be so small as to make it unreasonable not to
delay the implementation of the interdict to give the respondent the
opportunity to institute effective remedial measures to avoid the
occurrence of the apprehended harm. The determination of the

formulation of the relief to be granted has to be discretionary to
permit the court to appropriately address the requirements
of
reasonableness.
In the current case it is manifest that it would be
impractical and against the public interest to require the
respondents to
shut the doors of the refugee reception office
immediately, and without an opportunity to relocate, if needs be, in
an orderly
fashion. Indeed it is apparent from the manner in which
the applicant has framed its prayers for relief that it accepts that
the immediate operation of the interdict it seeks would be
unreasonable. The requirements of reasonableness in this respect
fall to be determined with regard to all the relevant facts of the
given case. On the facts of the current matter it might be
that if
there is a realistic prospect that the current unlawful use of the
property might be regularised, it would be reasonable
to afford the
respondents an opportunity to put matters in order. That
consideration must, of course, be weighed with other
features of the
case that bear on any decision to delay the operation of the
interdict. Regard must also be had to alleged nuisance
factors
about which the applicant complains. If the nuisance complaints are
established and it appears that they cannot be effectively
abated,
which was the finding in
Intercape Ferreira
,
that must have a bearing on the decision as to whether the operation
of the interdict should be suspended, and, if so, for how
long and
on what terms. I turn then to deal with the issue of nuisance.
Nuisance
In
Allaclas Investments (Pty)
Ltd and Another v Milnerton Golf Club and Others
2008 (3) SA 134
(SCA) at para. [15], Farlam JA rendered an
English translation of two passages from Steyn CJ’s
judgment
in
Regal v African Superslate (Pty)
Ltd
1963 (1) SA 102
(A), at 106H - 107B and
107E - G, which seem to me, with respect, to distil to its essence
the law of private nuisance in South
Africa. They go as follows in
translation from the Afrikaans original:
‘
1. [106H - 107B] We are concerned here in the
main with what can be called neighbour law. As a general principle
everyone can do
what he wishes with his property, even if it tends to
be to the prejudice or irritation of another but as concerns adjacent
immovable
property it almost goes without saying that there is less
room for unlimited exercise of rights. The law must provide
regulation
of the conflicting proprietary and enjoyment interests of
neighbours and it does this by limiting proprietary rights and
imposing
obligations on the owners towards each other. Some of the
limitations arise directly from the fact that an owner's rights of
ownership
end on his boundaries (Dernburg
System
1 par. 162). Although it is not a rigid rule it is not permitted for
him to perform an action which causes something to come on
to his
neighbour's land or has a direct result thereon. He acts for example
wrongfully if he breaks stones on his property in such
a way that
chips fall on his neighbour's land (Dig 8.5.8.5) . . . .
2. [107E - G] The usual disturbance by smoke one has to
endure from the other, but not excessively (Dig 8.5.8.5 and 6).
So
also the normal dampness caused by a bath against a common wall,
but not constant moisture which arises from all too frequent use

thereof (Dig 8.2.19). It is obvious that the same principle would be
able to find application as regards other disturbances such
as noises
or smells. (Cf
Christenaeus, In Leg. Mechl
.
14.29; 14.32 and 33; 14.43). In
Malherbe v
Ceres Municipality
,
1951 (4) S.A. 500
(A.D.)
at p 517, it is accepted 'that the consequences of the usual use
of a piece of ground by its owners cannot be regarded
as an unlawful
interference of his neighbour's land'.
A similarly instructive insight, quoted with approval
by Harms ADP (as he then was) in
PGB
Boerdery Beleggings Edms Bpk v Somerville 62 (Edms) Bpk
2008 (2) SA 428
(SCA),
36
was afforded by Prof. JRL Milton in Joubert (ed)
The
Law of South Africa
vol 19, para. 189:
An interference with the property rights of another is
not actionable as a nuisance unless it is unreasonable. An
interference will
be unreasonable when it ceases to be a
'to-be-expected-in-the-circumstances' interference and is of a type
which does not have
to be tolerated under the principle of 'give and
take, live and let live'. The determination of when an interference
so exceeds
the limits of expected toleration is achieved by invoking
the test of what, in the given circumstances, is reasonable. The
criterion
used is not that of the reasonable man but rather involves
an objective evaluation of the circumstances and milieu in which the

alleged nuisance has occurred. The purpose of such evaluation is to
decide whether it is fair or appropriate to require the complainant

to tolerate the interference or whether the perpetrator ought to be
compelled to terminate the activities giving rise to the harm.
This
is achieved, in essence, by comparing the gravity of the harm caused
with the utility of the conduct which has caused the
harm.
Inasmuch as some of the allegations concerning the
facts alleged to constitute an unreasonable interference with the
enjoyment
by the applicant are disputed, it is necessary in the
context of the final relief sought by the applicant on paper to
treat with
the evidence applying
Plascon-Evans
principles.
The applicant’s property fronts onto Voortrekker
Road at its junction with Prestige Drive. It is well known that
Voortrekker
Road is one of the main arterial roads servicing the
commercial areas of the suburbs lying between Maitland and
Bellville, to
the north of central Cape Town. Prestige Drive
affords access from the commercial area of Maitland to the adjoining
industrial
area of Ndabeni and the nearby suburb of Pinelands. The
applicant has suggested that vacant property in the direction of
Ndabeni
might be more appropriately developed for the purpose of
affording a refugee reception office. The properties in the area, on
both sides of Voortrekker Road, are zoned for commercial purposes.
It would appear on the evidence that they are used for a wide

variety of enterprises, including a fried food outlet, a fishmonger
and a supermarket. There is also an indication that the
area was
characterised by the presence of some informal traders even before
the opening of the refugee reception office at Maitland.
It is in
dispute whether the number of informal traders in the area has
increased since the opening of the office. The applicant’s

property is used to provide 12 ‘industrial units’, which
are let to six tenants. To the rear of the applicant’s

property is a railway line.
The premises at which the refugee reception office is
situated are adjacent to the applicant’s property. There is
no direct
access from Voortrekker Road to the buildings in which the
refugee reception office is housed. Access is obtained from the
rear
of the structure facing onto Voortrekker Road. One gets to the
rear of the property by using a tarred lane which runs directly

along the boundary between the applicant’s property and erf
24125, which is owned by the fifth respondent. The tarred
lane is
demarcated for use by two lanes of vehicles. It is subject to a
separate lease from those which pertain to the parts
of the premises
on which the buildings and parking lot used for the purpose of the
reception office. As mentioned earlier, the
parking lot and the
waiting shed are situated on land owned by the Passenger Rail
Agency. This area is also used for the temporary
toilet facilities
(‘portaloos’) mentioned earlier. The main hall of the
reception office is housed in part of what
used to be a warehouse at
the rear of erf 24129, which is owned by the sixth respondent.
It needs mentioning that the Department experienced
difficulty in locating suitable premises to house the reception
office within
the limited time afforded in terms of the order made
in
Intercape Ferreira
,
which required it to vacate the premises at Airport Industria. Some
consideration has been given to redeveloping erf 24125
with the
object of providing a specially designed facility to house the
office more efficiently than the current structures do.
It is
evident, however, that for a number of reasons, including the
current litigation, nothing concrete is being done to advance
these
ideas; indeed there is frequent reference in the answering papers to
the current set-up being a temporary one with the
prospect of the
eventual relocation of the refugee reception office to some quite
different area altogether. I have therefore
approached the
determination of this application on the basis that, subject to the
result of this case, the refugee reception
office is likely to
continue to operate at its current address for some time to come.
I propose to consider the nuisance issues in the same
order and using the same characterisation as they were dealt with in
the
applicant’s heads of argument.
It is admitted by the respondents that there is a
problem caused by numbers of asylum seekers who choose to sleep on
the pavement
outside the reception office so as to be assured of
admission to the office’s premises as soon as the gates open.
It is
admitted that this is particularly problematic on the eve of
days on which asylum seekers from Zimbabwe, who apparently
constitute
the by far biggest category by nationality, are attended
to.
37
The unwholesome consequences of significant numbers of people
camping on the pavement overnight with no ablution facilities
are
axiomatic. The applicant complains in particular about the
resultant litter and the smell and filth that follow from people

being obliged to use the pavement and surrounds as an open toilet.
To try to address this problem the respondents have
arranged that the gates to the office premises are now opened at
4.00 am,
with the result that applicants for asylum are able to
move to the large off road holding area long before the office opens
for
business. The office has furthermore instituted a regime of
flexitime for its employees, which results in it being able to be

open for extended working hours every day. The respondents have
also employed a cleansing service with instructions to remove
litter
from the pavement first thing in the morning before the businesses
in the area, including those of the applicant’s
tenants, open
for business. The respondents aver that they have employed guards
who have been instructed to do everything possible
to discourage
asylum seekers from camping overnight on the pavements. While I am
prepared to accept that the litter issue has
been largely addressed,
it is nevertheless evident that the fundamental problem caused by
people camping on the pavement remains.
One can understand the basis of the problem if the
facility is unable to cope with the number of desperate people who
flock there
to regularise their residence status. It is common
ground that many of these unfortunates are economically deprived and
quite
unable to afford the cost of transportation to the office on
repeated visits. It is understandable that people in such plight

would decide to sleep outside the premises to try to ensure that
they are at the head of the queue when the office opens. It
seems
to me that the problem will not be remedied unless the Department
employs sufficient staff to ensure that the average number
of asylum
seekers attending on the office on any day can be comfortably
processed. The director in charge of the office, Mr
Sikakane, has
deposed to an affidavit which shows that the office is understaffed
in comparison with the Johannesburg office,
having regard to the
number of persons it has to process. The Cape Town office has a
staff complement of 44 + 16 ‘interns’,
compared with
that of 113 (excluding ‘interns’) in Johannesburg. He
has applied for the situation to addressed but,
bureaucracy being
what it is, nothing concrete has yet been done in this regard to
resolve the evident insufficiency of resources.
A further remedial
measure that has been introduced by the Department in an attempt to
ameliorate the situation is the extension
of the period of the
validity of the provisional permits issued in terms
s 22
of the
Refugees Act to
persons whose applications for asylum in terms of
s 21 of the Act are still in the process of being considered.
The various efforts of the Department to address the
problem are laudable, but, for the reasons given by Rogers AJ
in
Intercape Ferreira
at paragraphs [154]-[162], I am unable to accept the respondents’
contention that it cannot be held responsible for the
problem of
people sleeping on the pavement and that this is really the
responsibility of other organs of government, such as
the police and
the local authority to deal with. In taking this view I do not
overlook the vital social and legal utility served
by the provision
of a refugee reception office. My approach is premised on the
findings made earlier in this judgment that nothing
about the
establishment or operation of such offices warrants the creation of
a nuisance; and that the reasonable operation of
such facilities
requires of the Department to take into account the logistical
demands of dealing with the numbers and socio-economic
conditions of
the persons who might be expected to use them. I accept that it is
difficult to predict the numbers of refugees
who will seek to use
the office, but the evidence is clear that the established trend is
an upward one. Until this changes the
Department must expect to
devote ever increasing resources to the function, certainly while
the current statutory framework applies.
38
Mr Sikakane, who made the principal answering
affidavit, has testified that ‘the size of the waiting crowd
almost inevitably
surpasses the daily capacity of the officials at
the centre’. As mentioned, he has applied for the staff
complement at
the Maitland office to be increased to approximate
that that deployed at the Johannesburg (Crown Mines) refugee
reception office.
I was informed from the bar by the respondents’
counsel that the appointment of extra staff to the Cape Town office
had
recently been approved and that such staff could be in position
at the office within three months. I was not informed exactly
how
many additional staff had been provided for in terms of this
approval, but the implication was that Mr Sikakane’s

application had been approved.
In the result the conclusion is impelled that the
operation of the Cape Town refugee reception office is unreasonably
under-resourced;
and that, in consequence, it is unable to deal
adequately with the average number of asylum seekers who present
themselves daily
at the office for the purposes required by the
Refugees Act. I
find that the unacceptable situation of a
significant number of persons sleeping on the pavement outside the
office is directly
attributable to this lack of capacity and that
the operation of the office in this way has resulted in an
unreasonable and unlawful
impingement on the amenities of the owners
and occupiers of neighbouring property, including the applicant.
The issue of traffic congestion and attendant problems
was graphically illustrated in a set of photographs put in by the
applicant.
The photographs in question were taken during the second
week of the operation of the office at its current address. The
respondents
do not deny that there were problems during this period,
caused in large part by a large crowd of asylum seekers gathering
outside
the gates to the office premises in the early hours of the
morning with the intention of gaining admission as soon as the gates

opened. To address this problem, as already mentioned, the gates
have for some time now been opened at 4.00 am, with the
result
that applicants for asylum are able to move to the large off road
holding area long before the office opens for business.
The
respondents dispute that there is exceptional traffic congestion in
Voortrekker Road and I am unable to dismiss this evidence
on the
papers. I can accept that there may well be frequent incidences of
taxi’s stopping to pick up or drop off passengers
at places
where stopping or parking is prohibited by traffic regulation.
Regrettably this is a phenomenon that is commonplace
in many places
in the City and is a problem that in the circumstances cannot be
laid at the respondents’ door. In the
absence of empirical
evidence by a traffic expert to support this ground of complaint I
find myself unable to uphold it.
Turning to other issues of ‘hygiene and litter’.
I am unable to find that the pavement cleaning system which the

respondents say has been introduced to clear the litter left by
those who sleep or congregate on the pavements before the office

gates open in the early morning is ineffectual. It does seem to me,
however, that the complaint about the inadequate provision
of toilet
facilities for the office is probably well founded, and if that is
so one can understand that persons visiting the
office will find
themselves forced to relieve themselves where they might be able to
outdoors on the office premises. That this
situation would give
rise to the malodorous situation of which the applicant complains
would follow. The evidence is that there
are 12 ‘internal
toilets’ and 10 so-called ‘portaloos’ available to
service the office. When regard
is had to the numbers of persons
attending on the office daily (it is not disputed that this can be
up to about 1500), this strikes
one as quite inadequate, especially
when account is taken that a large part of this number are present
on the premises for many
hours at a stretch. The number of toilets
that would be required to adequately service the demands imposed by
the use of the
office is not established empirically on the
evidence, but common experience of the ratio of toilets to capacity
in office buildings
and places like schools and theatres allows me
to find with sufficient confidence that there is an inadequate
provision on site
for the sanitary requirements of the persons using
the facility. I am satisfied that this state of affairs, which is
unreasonable,
gives rise to the complaint by the applicant that the
enjoyment of its property is being unlawfully and adversely
affected.
It seems appropriate that the respondents should be
required to make available so many additional toilets as may be
determined
by the City of Cape Town’s Chief Medical Officer of
Health to be sufficient for the requirements of an office servicing
up to 1500 asylum seekers per day on the basis described earlier in
this judgment and to be compliant with the applicable provisions,
in
particular Part Q, pertaining to non-waterborne means of sanitary
disposal, of the National Building Regulations.
The evidence put in by the respondents from the local
police station makes it impossible to find that the operation of the
office
has given rise to an increased level of crime and violence in
the area. I decline to have regard to the hearsay content of
newspaper
reports put in by the applicant in reply. Rather like the
indiscipline of road users, mentioned earlier, it is well known that

unacceptable levels of crime and violence exist in many areas of the
country. The problem, if it obtains in Maitland, will not
be
addressed by closing down the refugee reception office. For similar
reasons, bearing in this instance on the unemployment
problem which
also weighs heavily on the land, I am unimpressed with the complaint
that the applicant’s tenants have to
put up with persons
frequently ringing the doorbell to enquire whether there is work
available.
I am also not satisfied that the complaint about noise
nuisance has been established. The applicant’s premises are
in a
busy area and relatively high noise levels are to be expected.
If the applicant had sought to establish that the noise levels
had
been raised to unacceptable levels, even for the milieu in which its
premises are situated, it should have adduced appropriate
expert
evidence based on appropriate sound level testings.
Summary of findings
In summary, therefore, it has been established that the
operation of the refugee reception office at Maitland is unlawful by
reason
of the infringement thereby of the land use restrictions
applicable in terms of LUPO read with the SATS Act and by reason of

it giving rise, in the respects identified above, to an actionable
nuisance.
Relief
The applicant is entitled to an interdict prohibiting
the continued unlawful use of the premises by the respondents for
the purpose
of the operation of the refugee reception office. The
position in the current case is, however, distinguishable from that
which
obtained in
Intercape Ferreira
.
It seems to me that there may be a prospect that the applicable
land use restrictions might be amended so as to remove the
basis of
complaint on that ground. By this I should not be misunderstood to
be expressing any view which could be interpreted
as in any manner
anticipating or supporting such amendment. Whether there is to be
an amendment is a decision for the competent
authority in terms of
LUPO. It falls to be taken if there is an appropriate application;
no doubt, after considering any objections
from persons who might be
affected thereby. The relevant distinguishing feature between this
case and that in
Intercape Ferreira
is that in the latter matter it was clear that the premises were not
only being used in contravention of the zoning scheme regulations,

but also that the unwholesome consequences of their use could not be
addressed by any amendment to the applicable land use restrictions.

In the current case I am not convinced that the identified nuisances
attendant on the use of the Maitland premises are beyond
abatement,
as they were in respect of the premises in issue in
Intercape
Ferreira
.
These aspects of the current matter, assessed in the
context of the utility of the facility, impel the conclusion that
the relief
to be granted should afford the Department the
opportunity, if it wishes, to seek to remove the causes of complaint
and thereby
regularise the operation of the office at its current
location. Such a course will not impose too harshly or inequitably
on
the applicant, which, as mentioned, has accepted from the outset
that it would be impracticable to order the office to be closed

immediately. There can be no difference to the applicant if the
resultant interval is used to address the illegalities, rather
than
to find alternative premises. In this regard, I also take into
account the repeated averments by the deponent to the founding

affidavit that he understands the need for a refugee reception
office and has great sympathy for the plight of those who have
to
have resort to the facility. These commendable sentiments, which I
accept are sincerely expressed, would be empty if divorced
from any
willingness to realistically contribute in a relative ‘give
and take’ way towards a solution to the reasonable
and lawful
accommodation of the office. I say this without derogation from the
applicant’s right to object to any application
that might
ensue to amend the applicable land use regulations. I suggest only
that the applicant should be accepting of the
decision to suspend
the operation of the interdict that is to be granted so as to
enable, amongst other things, this avenue to
be explored. The
findings I have made recognise that the applicant was entitled to
complain that the issue was not being reasonably
addressed, but
those findings do not equate to a conclusion that it might not be
possible to effectively address it.
In deciding to suspend the operation of the interdict I
have in addition taken into account that it does not appear that the
relocation
of the refugee reception office to the premises at
Maitland involved a witting breach by the Department of the
provisions of
the zoning scheme. On the contrary it is apparent
that the Department consulted in some depth with the local authority
responsible
for the enforcement of the scheme without any demur from
that authority regarding the legality of the intended use of the
land.
It also seems to me that in the selection of the premises the
Department sought conscientiously to avoid a repetition of the
shortcomings identified in its use of the Airport Industria premises
in the judgment in
Intercape Ferreira
.
For completeness, and lest it be thought that I might
have overlooked the relief sought in terms of paragraph 3 of the
notice
of motion, I should perhaps record that in the exercise of my
discretion I consider that the interdictory relief that is to be

granted is sufficient to meet the unlawful conduct proven by the
applicant and that no purpose would be served in the peculiar

circumstances by reviewing and setting aside the various decisions
described in the said paragraph.
39
Application to strike out
At the commencement of the hearing the respondents
counsel handed up an application to strike out numerous passages in
the applicant’s
replying affidavits, as well as certain
annexures to those affidavits, including the press reports to which
I made passing reference
earlier. The applicant’s counsel had
inadequate opportunity to properly consider the application.
Notwithstanding this
disability, and despite the striking out
application including a prayer that the respondents be afforded an
opportunity to file
further affidavits if the application to strike
out not be granted, counsel on both sides agreed that the striking
out application
be dealt with
en passant
argument on the principal application. The respondents in any event
put in a further set of affidavits at the commencement of
the
hearing without objection from the applicant. Virtually no argument
was addressed in support of the striking out application.
In the circumstances just described I have found it
unnecessary to deal with the application to strike out. Suffice it
to say
that I am satisfied that the outcome of the proceedings has
been arrived at on a consideration of the papers which has not
prejudiced
the respondents in any relevant way.
Costs
The applicant has achieved substantial success in the
application and is therefore entitled in the ordinary course to an
order
that the respondents should pay its costs of suit. The
parties were agreed that the employment of two counsel was
justified.
Orders
The following orders will issue:
It is declared that the operation by the Department
of Home Affairs of its Cape Town refugee reception office at the
premises
situate at erven 24125, 24129, 24150, 24151 and 24165,
Cape Town, is unlawful by reason of the resultant infringement of

the land use restrictions applicable to erven 24150, 24151 and
24165 in terms of the City of Cape Town zoning scheme

regulations, read with s 13 of the Legal Succession to the
South African Transport Services Act 9 of 1989.
The first and second respondents are interdicted
from continuing with the operation of the refugee reception
office at the
said premises until and unless the land use
restrictions applicable to erven 24150, 24151 and 24165, Cape
Town, are amended
so as to permit of the lawful operation of the
office at the premises.
The operation of the interdict granted in terms of
paragraph 2 is suspended-
for a period of six months on condition that the
Department procures the submission within two months of the date of
this order
of an application to the competent authority in terms of
the Land Use Planning Ordinance 15 of 1985 by the owner of erven
24150,
24151 and 24165 for an appropriate amendment of the
applicable land use restrictions to enable the lawful use of the
said erven
for the purposes of the operation of a refugee reception
office at the said premises, and serves a copy of any such
application
on the applicant at the address of its attorneys of
record within three days of the lodgement of any such application
with
the competent authority;
alternatively
,
for a period of four months in the event that an
application for an amendment of the land use restrictions is not
submitted
within the period stipulated in sub-paragraph .
Without derogation from the aforegoing, it is
further declared that the current operation by the Department of
Home Affairs
of a refugee reception office at the said premises
has given rise to an actionable nuisance of the nature described
in
the reasons for judgment.
The first and second respondents are interdicted
from continuing with the operation of the refugee reception
office at the
said premises until the following measures are
taken to abate the said nuisance:
The onsite staff complement dedicated to the
administrative work of the office at the said premises is to be
increased from
the current number of 44 (excluding interns) to not
less than 90 (excluding interns);
The number of lavatories available for use by persons
attending at the office is to be increased to a number determined
in writing
by the Medical Officer of Health of the City of Cape
Town as being appropriate to address the demands of up to 1 500
daily
visitors and as being compliant with the requirements of the
National Building Regulations, and in particular Part Q thereof
pertaining to non-waterborne means of sanitary disposal.
The operation of the interdict granted in terms of
paragraph is suspended on condition that-
the abatement measure described in sub-paragraph
is effected within four months of the date of this order;
an affidavit by the second respondent confirming
compliance with the abatement measure described in sub-paragraph
is filed
with the Registrar of this Court and a copy thereof served
on the applicant at the address of its attorneys of record within
three days of the expiry of the period of four months provided for
in terms of sub-paragraph of this order;
the abatement measure described in sub-paragraph is
effected within two months of the date of this order;
an affidavit by the second respondent confirming
compliance with the abatement measure described in sub-paragraph
is filed
with the Registrar of this Court and a copy thereof served
on the applicant at the address of its attorneys of record within
three days of the expiry of the period of two months provided for
in terms of sub-paragraph of this order.
The first and second respondents shall be liable,
jointly and severally, the one paying the other being absolved,
to pay
the applicant’s costs of suit, including the costs
of two counsel.
A.G. BINNS-WARD
Judge of the High Court
1
Such as the 1948 (United Nations) Universal Declaration of Human
Rights.
2
For a succinct summary of the relevant workings of the Act, see
Arse
v Minister of Home Affairs and Others
[2010] ZASCA 9
(12 March
2010) at para.s [14] – [19].
3
This judgment may be accessed on the SAFLII website at
http://www.saflii.org.za/za/cases/ZAWCHC/2009/100.html
. The history through a series of judgments related to the
structural interdict granted in
Kiliko
, supra, is described
in
Intercape Ferreira
at para.s [21] – [25], [29] –
[30] and [180] – [181].
4
See
Intercape Ferreira Mainliner
, supra, at para.s [184] –
[186].
5
It might be that some characteristics of the alleged nuisance relied
upon by the applicant, for example the alleged traffic chaos
in
Voortrekker Road would qualify to be described as a public nuisance.
Nothing turns on this because the principles of law
involved in the
determination of the case remain the same; cf.
Three Rivers
Ratepayers Association v Northern Metropolitan Council and Another
2000 (4) SA 377
(W) at 380F-G.
6
Section 8 of the Act is quoted in para., above.
7
See the Public Service Regulations, 2001 published in GNR 1, dated 5
January 2001 (Government Gazette No. 21951) and cf. s 7
of the
Public Service Act, 1994.
8
Cf.
Minister of Public Works and Others v Kyalami Ridge
Environmental Association and Another (Mukhwevho Intervening)
2001 (3) SA 1151 (CC) at para.s [58] – [59]. The
position falls to be contrasted with that which obtained in
Diepsloot
Residents' and Landowners' Association v Administrator, Transvaal
[1994] ZASCA 24
;
1994 (3) SA 336
(AD);
[1994] 2 All SA 299
(A)
,
in which the three phases of implementation of the decision in terms
of the Less Formal Township Establishment Act 113 of 1991
to make
land available and settle the Zevenfontein squatters on land at
Diepsloot fell to be treated, for the purpose of an assessment
of
their legality, as inextricably interlinked. As the Appellate
Division observed in
Diepsloot
at 348B-349B (SALR), all three
phases of administrative action involved in that matter
(expropriation, designation and settlement)
were directed at a
single object viz. the establishment of a particular community of
informal settlers on a particular piece
of land. In the current
case, by contrast, the decision to establish a refugee reception
office in Cape Town was not inextricably
bound up with any decision
as to the precise location of the office’s address in Cape
Town.
9
Cf.
Grey’s Marine Hout Bay
(
Pty
)
Ltd and
Others v Minister of Public Works and Others
(
Grey’s
Marine
)
[2004] ZASCA 43
;
2005 (6) SA 313
SCA
[2005] ZASCA 43
; ;
2005 (10) BCLR 931
(SCA) at para.s [29]-[31] and
Walele v City of Cape Town and
Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC);
2008 (11) BCLR 1067
(CC) at para.s [28]-[32] (per Jaftha AJ, as he then was) and
para.s [122]-[132] (per O’Regan J).There was no
reliance
by the applicant on any legitimate expectation.
10
See fn. Error: Reference source not found.
11
The power of the legislature to afford statutory authority for the
infringement by any person of the right by another to the
reasonable
enjoyment of his/her property is limited by the relevant provisions
of the Constitution; see particularly ss 22,
25 and 36.
12
Both judgments are summarised in the
Diepsloot
judgment at
349J – 350 (SALR).
13
Section 3(2) of PAJA provides:
‘a) A fair administrative procedure depends on the
circumstances of each case.
b) In order to give effect to the right to procedurally fair
administrative action, an
administrator
,
subject to subsection (4), must give a person referred to in
subsection (1)-
a) adequate notice of the nature and purpose of the proposed
administrative action;
b) a
reasonable opportunity to make representations;
c) a
clear statement of the administrative action;
d) adequate notice of any right of review or internal appeal, where
applicable; and
e) adequate
notice of the right to request reasons in terms of
section
5
.’
14
Section 3(4) of PAJA provides:
a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from any of the requirements referred
to in
subsection (2).
b) In determining whether a departure as contemplated in paragraph
(a) is reasonable and justifiable, an administrator must take
into
account all relevant factors, including-
a) the
objects of the
empowering
provision
;
b) the nature and purpose of, and the need to take, the
administrative action;
c) the likely effect of the administrative action;
d) the urgency of taking the administrative action or the urgency of
the matter; and
e) the need to promote an efficient administration and good
governance.
15
Cf.
Intercape Ferreira
, supra, at para. [175].
16
Statutory authority was not raised as a defence in
Intercape
Ferreira
, but it is evident that the learned judge gave some
thought to the issue.
17
See para. , above.
18
By reason of the provisions of s 31 of the SATS Act, the
provisions of s 13 apply to land owned by the South African

Rail Commuter Association.
19
The ‘Company’ is Transnet Limited. As to the
application of the provision to the ‘railway properties’

in the current case, see fn. Error: Reference source not found.
20
See
The Concise Oxford English Dictionary
10
th
ed
revised (2002).
21
It seems clear from the context that the finding by the court ‘that
the respondent was guilty of a criminal conduct’
that Fourie J
had in mind was not a guilty verdict in criminal proceedings, but
rather a finding in the context of interdict
proceedings that the
respondent was engaged in conduct that could give rise to the
institution of criminal proceedings.
22
United Technical Equipment Co (Pty) Ltd v Johannesburg City
Council
1987 (4) SA 343
(T)
23
Nelson Mandela Metropolitan Municipality and Others v Greyvenouw
CC and Others
2004 (2) SA 81
(SE)
24
In the
Bitou
case the primary basis on which the court
refused the respondent’s request for a suspension of the
interdict appears to
have been because of a finding that there was
an absence of any power in law for the court to accede to the
request. The court
did however also hold in the alternative, and in
any event, that even assuming the existence of a discretionary power
to suspend
the interdict, no proper basis for the exercise of the
discretion in the respondent’s favour had been made out on the
facts.
25
Uniform Rule 45A provides: ‘The court may suspend the
execution of any order for such period as it may deem fit.’
26
The respondent in the
Bitou
case had persisted for a
considerable period of time in the unlawful use of its property in
contravention of the applicable zoning
scheme regulations
notwithstanding repeated notice by the local authority to cease its
unlawful activity and it took no steps
to apply for the rezoning
necessary to regularize its use of the land in question until two
months after the institution of proceedings
for a prohibitory
interdict by the local authority. The facts in the
United
Technical Equipment
and the
Nelson Mandela Metropolitan
Municipality
cases, supra, were broadly comparable with those in
Bitou
as instances of reckless and flagrant breaches of the
law.
27
Harms J and Plasket AJ, respectively, as they then were.
28
It is unnecessary to decide the point, but, as I had occasion to
observe in
Laskey
, supra, at para.s [41]-[43], there is a
body of authority which appears to hold that the court has a general
discretion to withhold
the grant of an interdict even in cases in
which the legal requirements for its grant are satisfied.
29
See also
s 21(1)(a)
of the
National Prosecuting Authority Act
32 of 1998
.
30
The paragraph is quoted
in extenso
in Du Toit et al
Commentary on the Criminal Procedure Act (Juta) loose-leaf ed.
1-4R-1-4S [Service 43, 2009].
31
Warringah
and
NRMCA (Qld) Ltd
, as well as other
judgments in point, are reviewed in
Woolworths Ltd v Caboolture
Shire Council & The Warehouse Group (Australia) Pty Ltd;
Woolworths Ltd v Caboolture Shire Council
& Makro Warehouse Pty
Ltd
[2004]
QPEC 026
, which is accessible on the AUSTLII site at
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QPEC/2004/26.html
.
32
See s 187B of the Town and Country Planning Act 1990
(Eng.) read with s 37(1) of the Supreme Court Act 1981. See
also
s 124 of the
Environmental
Planning and Assessment Act
1979
(New South Wales) and ss 4.1.21
and 4.3.25 of the
Integrated
Planning Act
1997
, Act 69
of 1997
(Queensland) (recently replaced by the Sustainable Planning Act,
2009).
33
Cf.
Wrexham County Borough Council
, supra, at para. 29;
Woolworths Limited v The Warehouse Group (Australia) Pty Ltd
(2003)
LGERA 341
, at 348; and
Warehouse Group
(Australia) Pty Ltd v Woolworths Ltd
(2003)
NSWCA 270
.
34
See s 174(8) of the Constitution.
35
It was no doubt that conclusion that provided the basis for the
application by the applicant for the review and setting aside
of the
decisions to lease the railway properties and the consequent
conclusion of the leases. See para. 3 of the notice
of motion
quoted in para. , above.
36
At para. [9].
37
The Department has found it expedient, so as to avoid the tensions
that sometimes manifest between asylum seekers from different

nationalities, to stipulate that persons from identified countries
are dealt with only on given days of the week; so, for example,
only
Zimbabweans are dealt with on Thursdays and Fridays.
38
There has been talk for some time now about the introduction of
statutory amendments to address the demands occasioned by large

numbers economic refugees from Zimbabwe, but nothing has yet been
done in this respect. This aspect was mentioned in
Intercape
Ferreira
, but the Department agreed that this case should be
determined on the basis of the currently obtaining situation, and
without
regard to the prospect of any possible amendments to the
law.
39
Paragraph 3 of the notice of motion is quoted in paragraph ,
above.