City of Cape Town v Bernado and Another (23466/2010) [2011] ZAWCHC 463 (24 November 2011)

JUDGMENT

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 23466/2010

DATE: 24 NOVEMBER 2011

In the matter between:

THE CITY OF CAPE TOWN …..........................................................Applicant

and

PATRICK ALLAN BERNADO …............................................1st Respondent

SANDRA DENISE BERNADO …...........................................2nd Respondent

JUDGMENT DAVIS, J: The applicant, The City of Cape Town, has applied for a final interdict preventing respondents from operating a shebeen/tavern on erf 5589, Durbanville, in contravention of the Land Use Planning Ordinance 15 of 1985, ("LUPO"), together with the Town Planning Scheme of Durbanville. In the application before this court, The City has sought an amendment to its notice of motion, which would broaden the relief for which it initially applied in its notice of motion, namely from prohibiting anyone from operating a shebeen/tavern to prohibiting any other business from operating on the property. This amendment has been vigorously opposed by the respondents, who are the joint registered owners of erf 5589, Durbanville. The City informs this court that the reasons for this amendment are, that should it be successful in interdicting the respondents from operating a shebeen/tavern on the property, a cynical way to circumvent the order, would be to permit a third party to operate a tavern or shebeen, or indeed, to run any other business on the property. The applicant refers to authority of some pedigree, insofar as the general rule to these amendments are concerned, thus in Milman v Estate Milman 1927 CPD 27 and 29, in which it was stated that: "An amendment will always be allowed unless the application to amend is mala fide or unless such an amendment cause an injustice to the other side which cannot be compensated by costs, in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleadings which is sought to amend were filed." It appears from the jurisprudence that an amendment which is sought in terms of Rule 28, as is this amendment, can be considered by the courts, who are entitled to exercise a wide discretion, and only limit such amendments in terms of consideration, prejudice or injustice to the respondent. See Devonia Shipping Limited v MV Luis Yeoman Shipping Company Limited Intervening 1994 (2) SA 363 (C) at 369. The question, therefore, which arises in this case, is what is the prejudice or the injustice which will be caused

to the respondents were this amendment to be granted. Respondents contend that the applicant now seeks to introduce an application for relief which is substantially different from that which was originally sought in the applicant's original notice of motion. In other words, as Mr Benade, who appeared on behalf of the respondents submitted, the application as initially framed, was for the prohibition of the conducting of a shebeen/tavern business. The extension which is contained in the amendment could not, in his view, be foreshadowed in the papers which were submitted and supported their initial notice of motion. Furthermore, he contends that applicant, at no stage in its founding affidavit, substantiated any facts in support of the request of relief. It was effectively making an application for an order which would interdict respondents from operating a business on the property both at present and in the future without any evidentiary support which would justify such an order. The City should be confined to that which it initially sought, that is an interdict prohibiting the operation of a shebeen/tavern on the property. In support of this argument, Mr Benade submitted that this court is not in a position to properly consider the potential prejudice which may be suffered by the respondents should the amendment be granted. In the first place, as Mr Rosenberg, who appeared together with Ms O'Sullivan on behalf of The City, correctly observed, the factual edifice of the affidavits in support of the original notice of motion, makes it luminously clear that the zoning of erf 5598 was "residential". To cite examples from the founding affidavit, paragraph 13: "Erf 5589 is situated in a residential area in a zone for single residential purposes as is apparent from the relevant portion of the applicant's zoning map..." Paragraph 14: "I attach hereto... the relevant excerpts from the Durbanville Scheme in respect of the single residential zone. It is apparent therefrom that the use right in a single residential zoned area is a dwelling house and the consent used as a place of public worship and a place of instruction." To the extent that it is necessary, paragraph 86: "If The City were to permit the applicant to continue to operate a tavern on that erf under the circumstances, it would sanction the respondents' continued unlawful and criminal behaviour in a manner that's contrary to The City's obligation to enforce its zoning scheme. The City is obliged by S39 of LUPO to enforce the zoning scheme regulations." Paragraph 87: "To permit the respondents' continued use of the erf would render the legislative of a regulatory scheme nugatory." Paragraph 88: "This would facilitate the unlawful usage of erven in contravention of the zoning scheme. Owners would simply use an erf for the purpose in contravention of the zoning scheme while they seek ex post facto regularisation instead of obtaining the necessary approval prior to doing so." A reasonable reader of this affidavit would have known well that the legal edifice upon which the entire notice of motion was based, was the contention that the respondents were using the erf for a purpose which fell outside the residential zoning, which was unlawful and, therefore which stood to be prohibited. The fact that respondents now contend that the notice of motion honed in specifically on one form of business, surely cannot, on the basis of the case made out in the founding papers, exclude the possibility that other forms of business could not be justified in terms of a notice of motion suitably amended. Even as I formulate this passage, I am cognisant that in so doing, I tread perilously close to a determination of the final case which is not before me. In other words, the test to be adopted in this case, namely as to whether to allow the amendment pursuant to Rule 28, is not to determine the merits of the case, but to examine whether, on the basis of the papers before the court, the amendment is sufficiently closely related to the legal edifice of the case as set out in those papers, to sustain the amendment. Mr Benade, appreciating this difficulty, raised a plethora of examples in which he sought to argue that on the basis of applicant's contribution,

any amendment could then be sought, notwithstanding its proximity to the case so made out. However, the approach, as I have set it out above, clearly indicates that a court needs to examine the link between that which appears in the papers and that which is sought by way of a Rule 28 amendment. To the argument that there is prejudice to the respondents, no substantive argument has been raised before this court. It appears from the papers that even the respondents concede that the relevant erven have been zoned residential. On what conceivable basis one might then ask rhetorically can it be argued that there is a prejudice to the respondents for The City to seek to enforce the zoning scheme? This argument is fortified in a series of carefully constructed judgments. For example, in United Technical Equipment Company v Johannesburg City Council 1987 (4) SA 343 (T) at 348H-J, Harms, J (as he then was), said: "The respondent (the Johannesburg City Council in this case) has not only a statutory duty, but also a moral duty to uphold the law and to see to due compliance with its town planning scheme. It would in general be wrong to whittle away the obligation of the respondent as a public authority to uphold the law. A lenient approach could be an open invitation to members of the public to follow the course adopted by the appellant, namely to use land illegally with the hope that the use will be legalised in due course and that pending finalisation, the legal use will be protected indirectly by the suspension of an interdict." See also in this connection the more recent judgment of Fourie, J in this Division, in Bitou Local Municipality v Timber Two Processes 2009 (5) SA 618 at para 34, in which the learned judge says: "Were I to accede to the request of first and second respondents to suspend the operation of the interdicts sought by applicants, I would condone their ongoing criminal behaviour and abrogate the duty of this court as an enforcer of the law. A suspension will also undermine sound and effective local government and be contrary to public policy." In this regard it bears repeating the following observation expressed by Broome, J in Ostrowiak v Pinetown Town Board 1948 (3) SA 589 (D) at 591: "The public interest requires that the control and regulation of buildings in local authority areas should be placed in the hands of the local authority itself... [I[f private persons are permitted to erect buildings in the teeth of the law, then there is an end to any sound local government." The point of these dicta is that there is an obligation, both legal, and following Harms, J's (as he then was), moral for The City to ensure that the zoning regulations be enforced. Were this Court to disallow this amendment, it would effectively be saying the following, you can obtain an interdict if you convince the court, on the probabilities, to prohibit any shebeen/tavern on the basis that the latter is a business which breaches the zoning requirements, but you cannot go any further and prohibit any other commercial activity which is also in breach of the zoning requirements. That would then constrain the protective role of The City as articulated in these judgments. In my view, there is no basis by which to oppose this particular amendment. There is no prejudice to the respondents. There is no injustice which is caused to them. Indeed, I could not help feeling that a considerable part of the argument was focused on whether the factual matrix was sufficient to sustain the relief sought. That is for another day and the respondents are perfectly entitled to then argue their case on those papers. There is the question of the late filing of the amendment. That is explained in an affidavit which sets out the reasons why The City was late in compliance. The issue has not been opposed vigorously by the respondents and correctly so, because there is no basis for all.of the reasons that I have already set out, for this matter not to be argued on the amended basis. The reasons given are in relation to the non-compliance to the time limits as set out in the affidavit are sufficiently compelling to allow the breach to be condoned. Finally, there is the question of costs. Mr Rosenberg submitted that The City established the grounds for the amendment, that there was no basis to oppose the amendment, that the opposition is so unjustified as to clearly be unreasonable and that further opportunities had been provided by to the respondents by The City to address any issues occasioned by the amendment by way of a supplementary affidavit. In his view, the respondents' refusal in the face of these opportunities suggested, at best, unreasonable behaviour and at worst a vexatious attitude on their part. I consider that the behaviour was sufficiently unreasonable and that the lack of significantly justifiable and plausible opposition to this application, necessitates an award on an attorney and client basis. There is a regrettable tendency in litigation these days for all manner of opposition to take place, all range of appeals to be lodged, which not only clog up the courts, but which prevent justice from finally being effected. Courts need to balance the rights of parties against this tendency, which is contrary to the pursuit of both justice, and legality, when viewed through the prism of finality. In a country such as South Africa with limited resources, courts need to be more and more circumspect to allow parties to run cases forever and, therefore, postpone the inevitable, namely a resolution of the dispute. This is the kind of case where the order on the attorney and client scale is, therefore, justified. Mr Benade did however make one point with which I agree. If the matter was as simple as Mr Rosenberg suggested, then I have little doubt that his junior, Ms Q'Sullivan would have been perfectly competent to have dealt with the matter. That is not at all to be construed as any criticism Mr Rosenberg who, of course, is a most distinguished silk. It is simply to state the obvious two counsel were not needed. Accordingly the amendment as set out in the notice of motion is granted and costs are awarded against the respondents on attorney/client scale, only insofar as one counsel is concerned. DAVIS J

DAVIS, J:

The applicant, The City of Cape Town, has applied for a final interdict preventing respondents from operating a shebeen/tavern on erf 5589, Durbanville, in contravention of the Land Use Planning Ordinance 15 of 1985, ("LUPO"), together with the Town Planning Scheme of Durbanville. In the application before this court, The City has sought an amendment to its notice of motion, which would broaden the relief for which it initially applied in its notice of motion, namely from prohibiting anyone from operating a shebeen/tavern to prohibiting any other business from operating on the property. This amendment has been vigorously opposed by the respondents, who are the joint registered owners of erf 5589, Durbanville.

The City informs this court that the reasons for this amendment are, that should it be successful in interdicting the respondents from operating a shebeen/tavern on the property, a cynical way to circumvent the order, would be to permit a third party to operate a tavern or shebeen, or indeed, to run any other business on the property.

The applicant refers to authority of some pedigree, insofar as the general rule to these amendments are concerned, thus in Milman v Estate Milman 1927 CPD 27 and 29, in which it was stated that:

"An amendment will always be allowed unless the application to amend is mala fide or unless such an amendment cause an injustice to the other side which cannot be compensated by costs, in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleadings which is sought to amend were filed."

It appears from the jurisprudence that an amendment which is sought in terms of Rule 28, as is this amendment, can be considered by the courts, who are entitled to exercise a wide discretion, and only limit such amendments in terms of consideration, prejudice or injustice to the respondent. See Devonia Shipping Limited v MV Luis Yeoman Shipping Company Limited Intervening 1994 (2) SA 363 (C) at 369. The question, therefore, which arises in this case, is what is the prejudice or the injustice which will be caused

to the respondents were this amendment to be granted.

Respondents contend that the applicant now seeks to introduce an application for relief which is substantially different from that which was originally sought in the applicant's original notice of motion. In other words, as Mr Benade, who appeared on behalf of the respondents submitted, the application as initially framed, was for the prohibition of the conducting of a shebeen/tavern business. The extension which is contained in the amendment could not, in his view, be foreshadowed in the papers which were submitted and supported their initial notice of motion.

Furthermore, he contends that applicant, at no stage in its founding affidavit, substantiated any facts in support of the request of relief. It was effectively making an application for an order which would interdict respondents from operating a business on the property both at present and in the future without any evidentiary support which would justify such an order. The City should be confined to that which it initially sought, that is an interdict prohibiting the operation of a shebeen/tavern on the property. In support of this argument, Mr Benade submitted that this court is not in a position to properly consider the potential prejudice which may be suffered by the respondents should the amendment be granted.

In the first place, as Mr Rosenberg, who appeared together with Ms O'Sullivan on behalf of The City, correctly observed, the factual edifice of the affidavits in support of the original notice of motion, makes it luminously clear that the zoning of erf 5598 was "residential". To cite examples from the founding affidavit, paragraph 13:

"Erf 5589 is situated in a residential area in a zone for single residential purposes as is apparent from the relevant portion of the applicant's zoning map..."

Paragraph 14:

"I attach hereto... the relevant excerpts from the Durbanville Scheme in respect of the single residential zone. It is apparent therefrom that the use right in a single residential zoned area is a dwelling house and the consent used as a place of public worship and a place of instruction."

To the extent that it is necessary, paragraph 86:

"If The City were to permit the applicant to continue to operate a tavern on that erf under the circumstances, it would sanction the respondents' continued unlawful and criminal behaviour in a manner that's contrary to The City's obligation to enforce its zoning scheme. The City is obliged by S39 of LUPO to enforce the zoning scheme regulations."

Paragraph 87:

"To permit the respondents' continued use of the erf would render the legislative of a regulatory scheme nugatory." Paragraph 88:

"This would facilitate the unlawful usage of erven in contravention of the zoning scheme. Owners would simply use an erf for the purpose in contravention of the zoning scheme while they seek ex post facto regularisation instead of obtaining the necessary approval prior to doing so."

A reasonable reader of this affidavit would have known well that the legal edifice upon which the entire notice of motion was based, was the contention that the respondents were using the erf for a purpose which fell outside the residential zoning, which was unlawful and, therefore which stood to be prohibited. The fact that respondents now contend that the notice of motion honed in specifically on one form of business, surely cannot, on the basis of the case made out in the founding papers, exclude the possibility that other forms of business could not be justified in terms of a notice of motion suitably amended.

Even as I formulate this passage, I am cognisant that in so doing, I tread perilously close to a determination of the final case which is not before me. In other words, the test to be adopted in this case, namely as to whether to allow the amendment pursuant to Rule 28, is not to determine the merits of the case, but to examine whether, on the basis of the papers before the court, the amendment is sufficiently closely related to the legal edifice of the case as set out in those papers, to sustain the amendment.

Mr Benade, appreciating this difficulty, raised a plethora of examples in which he sought to argue that on the basis of applicant's contribution,

any amendment could then be sought, notwithstanding its proximity to the case so made out. However, the approach, as I have set it out above, clearly indicates that a court needs to examine the link between that which appears in the papers and that which is sought by way of a Rule 28 amendment.

To the argument that there is prejudice to the respondents, no substantive argument has been raised before this court. It appears from the papers that even the respondents concede that the relevant erven have been zoned residential. On what conceivable basis one might then ask rhetorically can it be argued that there is a prejudice to the respondents for The City to seek to enforce the zoning scheme?

This argument is fortified in a series of carefully constructed judgments. For example, in United Technical Equipment Company v Johannesburg City Council 1987 (4) SA 343 (T) at

348H-J, Harms, J (as he then was), said:

"The respondent (the Johannesburg City Council in this case) has not only a statutory duty, but also a moral duty to uphold the law and to see to due compliance with its town planning scheme. It would in general be wrong to whittle away the obligation of the respondent as a public authority to uphold the law. A lenient approach could be an open invitation to members of the public to follow the course adopted by the appellant, namely to use land illegally with the hope that the use will be legalised in due course and that pending finalisation, the legal use will be protected indirectly by the suspension of an interdict."

See also in this connection the more recent judgment of Fourie, J in this Division, in Bitou Local Municipality v Timber Two Processes 2009 (5) SA 618 at para 34, in which the learned judge says:

"Were I to accede to the request of first and second respondents to suspend the operation of the interdicts sought by applicants, I would condone their ongoing criminal behaviour and abrogate the duty of this court as an enforcer of the law. A suspension will also undermine sound and effective local government and be contrary to public policy."

In this regard it bears repeating the following observation expressed by Broome, J in Ostrowiak v Pinetown Town Board 1948 (3) SA 589 (D) at 591:

"The public interest requires that the control and regulation of buildings in local authority areas should be placed in the hands of the local authority itself... [I[f private persons are permitted to erect buildings in the teeth of the law, then there is an end to any sound local government."

The point of these dicta is that there is an obligation, both legal, and following Harms, J's (as he then was), moral for The City to ensure that the zoning regulations be enforced. Were this Court to disallow this amendment, it would effectively be saying the following, you can obtain an interdict if you convince the court, on the probabilities, to prohibit any shebeen/tavern on the basis that the latter is a business which breaches the zoning requirements, but you cannot go any further and prohibit any other commercial activity which is also in breach of the zoning requirements. That would then constrain the protective role of The City as articulated in these judgments.

In my view, there is no basis by which to oppose this particular amendment. There is no prejudice to the respondents. There is no injustice which is caused to them. Indeed, I could not help feeling that a considerable part of the argument was focused on whether the factual matrix was sufficient to sustain the relief sought. That is for another day and the respondents are perfectly entitled to then argue their case on those papers.

There is the question of the late filing of the amendment. That is explained in an affidavit which sets out the reasons why The City was late in compliance. The issue has not been opposed vigorously by the respondents and correctly so, because there is no basis for all.of the reasons that I have already set out, for this matter not to be argued on the amended basis. The reasons given are in relation to the non-compliance to the time limits as set out in the affidavit are sufficiently compelling to allow the breach to be condoned.

Finally, there is the question of costs. Mr Rosenberg submitted that The City established the grounds for the amendment, that there was no basis to oppose the amendment, that the opposition is so unjustified as to clearly be unreasonable and that further opportunities had been provided by to the respondents by The City to address any issues occasioned by the amendment by way of a supplementary affidavit. In his view, the respondents' refusal in the face of these opportunities suggested, at best, unreasonable behaviour and at worst a vexatious attitude on their part.

I consider that the behaviour was sufficiently unreasonable and that the lack of significantly justifiable and plausible opposition to this application, necessitates an award on an attorney and client basis. There is a regrettable tendency in litigation these days for all manner of opposition to take place, all range of appeals to be lodged, which not only clog up the courts, but which prevent justice from finally being effected. Courts need to balance the rights of parties against this tendency, which is contrary to the pursuit of both justice, and legality, when viewed through the prism of finality.

In a country such as South Africa with limited resources, courts need to be more and more circumspect to allow parties to run cases forever and, therefore, postpone the inevitable, namely a resolution of the dispute. This is the kind of case where the order on the attorney and client scale is, therefore, justified.

Mr Benade did however make one point with which I agree. If the matter was as simple as Mr Rosenberg suggested, then I have little doubt that his junior, Ms Q'Sullivan would have been perfectly competent to have dealt with the matter. That is not at all to be construed as any criticism Mr Rosenberg who, of course, is a most distinguished silk. It is simply to state the obvious two counsel were not needed. Accordingly the amendment as set out in the notice of motion is granted and costs are awarded against the respondents on attorney/client scale, only insofar as one counsel is concerned.

DAVIS J