City of Johannesburg v Horizon Bay Investments (Pty) Ltd and Another (30293/11) [2011] ZAGPJHC 204 (8 December 2011)
The court found that, although the applicant intended to prohibit the respondents' activities, it failed to properly gazette or proclaim such a prohibition in terms of the applicable ordinance. The applicant could not demonstrate the necessary legal connection in the proclamations or statutory instruments relied...
Source-derived case information.
- Citation
- [2011] ZAGPJHC 204
- Parties
- Applicant: City of Johannesburg; Respondent: Horizon Bay Investments (Pty) Ltd; Respondent: Fairwish Props 9 (Pty) Ltd
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 30293/11
- Procedural Posture
- Urgent Application / Judgment
- Outcome
- Application dismissed with costs, including all costs previously reserved.
- Judges
- Willis
- Legal Topics
- Town Planning, Statutory Interdict, Proclamation Requirements, Property Rights
Source-derived case record
Summary, issues, holding and outcome
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Parties
City of Johannesburg
Applicant
Horizon Bay Investments (Pty) Ltd
Respondent
Fairwish Props 9 (Pty) Ltd
Respondent
Procedural Posture
Urgent Application / Judgment
Legal Issues
- 1 Whether the respondents' activities of panel beating and spray-painting on the specified properties are prohibited by law.
- 2 Whether the applicant has properly gazetted a prohibition in terms of the relevant ordinance to restrict such activities.
- 3 Whether the applicant is entitled to an interdict against the respondents based on statutory or common law grounds.
Ratio Decidendi
The court found that, although the applicant intended to prohibit the respondents' activities, it failed to properly gazette or proclaim such a prohibition in terms of the applicable ordinance. The applicant could not demonstrate the necessary legal connection in the proclamations or statutory instruments relied upon. As a result, the respondents retain their common law rights to conduct their business on their property, absent a valid statutory restriction. The court adopted a strict and technical approach, emphasizing that restrictions on property rights must be clearly established in law. The application was dismissed with costs, including all costs previously reserved.
Court Disposition
Application dismissed with costs, including all costs previously reserved.
Orders
- The application is dismissed with costs.
- The costs order includes all costs previously reserved.
Full Case Text
Judgment text and source record
32 paragraphs
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO:30293/11
DATE:08/12/2011
CITY OF JOHANNESBURG …................................................Applicant
and
HORIZON BAY INVESTMENTS (PTY) LTD....................1st Respondent
FAIRWISH PROPS 9 (PTY) LTD.....................................2nd Respondent
J U D G M E N T
WILLIS J:
[1] The applicant seeks an order directing that the respondents forthwith cease to conduct noxious related activities, in particular
panel beating and spray-painting of motor vehicles on erwen 15 and 16 of Longmeadow Business Estate, Extension 1, Township Registration
Division IR, province Gauteng, situate at 49 and 47 Angus Crescent, Longmeadow Business Estate, Extension 1.
[2] This is an unusual matter inasmuch as it is common cause that the respondents are in fact spray-painting on the property concerned. It is also common cause that it is a matter of public knowledge that the applicant intended to prohibit business of the kind conducted by the respondents on the particular property. This much appears from a document which is styled "final conditions of establishment,
Longmeadow Business Estate, Extension 1, 31 October 2011".
[3] The difficulty for the applicant is that, despite its good intentions, it failed properly to gazette a prohibition in terms of any ordinance that prohibits the activity in question. As Mr Hollander, who appears for the respondents, correctly submitted, in order to succeed the applicant has to show that in terms of Section 125 of the Town Planning and Townships Ordinance No. 15 of 1986 there has been a proper proclamation not only approving the particular township but also prohibiting the type of activity in question.
[4] It may well seem that the respondents have succeeded in this matter on a very technical basis but it needs to be borne in mind
that, at common law, one has a right to do whatever one likes on one's property provided that that activity is not prohibited in terms of the common law (in other words one is not entitled to commit a murder on one's own property). A technical, strict approach has to be adopted by the court where there are restrictions prohibiting activities of the kind in question. I record that I have sympathy for the applicant in this matter.
[4] Counsel for the applicant argued, over and over again ad nauseam, yesterday that if one reads notice 8188 of 2000 in respect of the Edenvale/Modderfontein Metropolitan Local Council, and notice 8189 relating to the declaration of an approved township in the Longmeadow Business Estate, Extension, together with the final conditions of establishment referred to earlier, dated 31 October 2000 there was in fact a statutory prohibition. Unfortunately,
despite my inviting Mr Magano several times to show where, pertinently, there was the necessary connection made in the proclamation as a matter of law, he was unable to do so. Yesterday afternoon the court granted him an indulgence, affording him an opportunity to consult with the legal advisors for the City of Johannesburg to have one last attempt to show me why the interdict should be granted.
[5] To my surprise, and having further agreed to stand the matter down not only from 10:00 until 11:30, at 11:30 this morning, I was informed by his opponent that Mr Magano was not in court because he was in another court, the urgent court. That is simply not good enough. That is not how counsel conduct themselves. I am now delivering judgment at 12:55 despite repeated pleas from Mr Hollander that I delay giving my judgment in order to enable Mr Magano to attend this court, he is still not here.
[6] In the last week of the court year I do not have time to sit around waiting for counsel to deign to grace the court with their
presence. I disapprove.
[7] In the result there can be only one result in this matter. It is that the application is dismissed with costs. That is the order of the court.
[8] Immediately having given judgment in this matter, Mr Hollander applied for the costs previously reserved to be awarded to the applicant. This application is permissible as there had not previously been an address on costs. That can always be done after the judgment. I can see no reason in the circumstances why the respondent should not succeed with costs. The costs order that I have granted is to include all costs previously reserved.
[9] The court of the court is thus that the application is dismissed with cots, which costs are to include all costs previously reserved.
Counsel for the Applicant: Adv T J Magano
Attorneys for the applicant: Mojela Hlazo
Counsel for the Respondents: Adv L. Hollander
Attorneys for the Respondents: Phillip Silver Seven Associates
Date of hearing: 7 December 2011
Date of judgment: 8 December 2011