City of Johannesburg v Libertas Hotel and Another (26300/04) [2005] ZAGPHC 380 (15 December 2005)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case No.: 26300/04

Date:15/12/2005

In the matter between:

The City of Johannesburg......................................................................Applicant

and

Libertas Hotel..............................................................................First Respondent

Angelfish Investments 827 CC..........................................Second Respondent

JUDGMENT

[1] The applicant seeks an order interdicting and restraining the respondents from using or permitting the use of certain immovable

property in contravention of the Johannesburg Town Planning Scheme, 1979.

[2] The property in issue comprises a three storey hotel, which is known as the Libertas Hotel. The hotel has been operating for the last five decades and it has 24 rooms and three bar areas.

[2] It is common cause that the property is zoned “Business 1” in terms of the scheme. Such zoning permits the property to be used only for purposes of “shops, dwelling units, residential buildings, business purposes, car sales lots, places of public worship, places of instruction, social halls, canteens, dry cleaners, laundrettes and warehouses.” (Emphasis provided)

[3] “Residential building” means a building, excluding a dwelling house and a building containing two or more dwelling units, designed for use, or used, for human habitation, and it includes a boarding house, an hotel, a residential club, and a hostel.

[4] “Business purposes” means the use of a building for offices, a showroom, warehouse, restaurant and for other business purposes which are not elsewhere defined in this clause as well as all uses which are ancillary, directly related to and subservient to the main use and includes the use of land for business purposes. A “restaurant” means a building designed for use or a building or land which is used for the preparation, service and consumption on the site of food or liquid refreshments.

[5] The applicant does not seek to interdict the use of the property as a hotel and bar as such are permitted in terms of the zoning of the property.

[6] The applicant contends that the property is used for the purpose of a “place of amusement”, and therefore for a business purpose which is “elsewhere defined” in the scheme as including a building designed for use, or a building or land which is used, as a theatre, cinema, music hall, concert hall, billiards saloon, sports arena, skating rink, dance hall, for the purpose of exhibitions of trade or industry or other recreational purposes and also includes such uses as are ancillary, directly related to and subservient to the main use. It is the applicant’s

contention that the zoning “Business 1” does not permit the use of the property as a place of amusement, i.e. for “recreational purposes.”

[7] The factual basis for the applicant’s contention that the property is used as a place of amusement is the presence of at least four pool tables and two jukeboxes on the property, the playing of loud music and dancing on the property. The applicant further alleges that, at the time of an inspection by the applicant, there was a blackboard inside one of the bars which read “ladies club presents Friday nights dance competition. The music resolution featuring with DJ Joe, Saturday and Sunday”, and in one of the other bars a sign reading “rhythm and blues jazz pub”.

[8] The version of the respondents is that there are two jukeboxes and four pool tables on the property and a raised platform with

tables and chairs thereon for the use of patrons of the bar area. The jukeboxes are set at volumes lower than the acceptable levels and the bar areas are sound-proofed. The respondents contend that they are entitled to use these items. The respondents do not deny the playing of music on the property, but deny the playing of loud music and that dancing takes place on the property. The respondents say “…that people spontaneously start moving to the rhythm of the music played there.” The respondents deny that there was a blackboard in a bar and sign in another bar as is alleged by the applicant.

[9] Mr Both, who appeared for the applicant, submitted that, on the common cause and unchallenged facts, the property is used for

recreational purposes within the meaning of a place of amusement. I disagree. The common cause or unchallenged facts are that the property is a three storey hotel with 24 rooms and three bar areas, which has been operating as a hotel for the last five decades. The respondent’s version is further that there are two jukeboxes and four pool tables that are being used on the property. The applicant’s other allegations, such as the playing of loud music and dancing on the property, are denied.

[10] The presence or use of two jukeboxes and four pool tables on the property which has been operating as a hotel for the last five decades cannot in my judgment be said to be using the premises for recreational purposes within the meaning of a place of amusement.

[11] This finding renders it unnecessary for me to consider the other submissions made by Ms Liebenberg, who appeared for the respondents,

relating to the existence of a licence in terms of the Business Act 71 of 1991, and that the definition of a “place of amusement” is void for vagueness.

[12] My conclusion is that it has not been established that the use of the property contravenes the applicant’s town planning

scheme, which is the only basis of the applicant’s application.

[13] In the result, the application is dismissed with costs.

________________________

P.A. MEYER

Acting Judge

15 December 2005