City of Johannesburg v WMA Winners Chapel International (37432/2012) [2013] ZAGPJHC 410 (5 December 2013)

REPUBLIC OF SOUTH AFRICA

IN THE SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO: 37432/2012

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

5/12/2013

In the matter between:

CITY OF JOHANNESBURG Applicant

and

WMA WINNERS CHAPEL INTERNATIONAL Respondent

JUDGMENT

MAHALELO AJ:

[1] The applicant seeks an order interdicting and restraining the respondent from using or permitting the use of the property Erf 440-442 Rouxville (“the property”) situated in Louis Botha Avenue, Rouxville, Gauteng, as a place of worship.

[2] The applicant also seeks an order that the respondent be ordered to demolish the unauthorised alterations erected on the property which do not comply with the National Building Regulations and Building Standards Act 103 of 1977 (“the Act”).

[3] The applicant further seeks an order that the respondent be ordered to comply with the Town Planning and Township Ordinance 15 of 1986 (“the Ordinance”) and the Johannesburg Town Planning Scheme of 1979 (“the scheme”) with particular reference to the use of the property for purposes permitted in terms of zoning “Business 1” read together with the approved building plans. Furthermore the applicant seeks an order that in the event of the respondent failing to comply, the sheriff be authorised and permitted to demolish all unauthorised structures, and remove and discard the rubble .The applicant seeks an order that the respondent pays the costs of the demolition. It further seeks a special costs order against the respondent’s attorney and counsel. The issue of costs is to be dealt with later in the judgment.

[4] The respondent acquired the property in 2007. The property was previously used as a warehouse in accordance with the Act, the Scheme and the Ordinances.

[5] According to the applicant it came to its attention in October 2011 that the respondent began construction of internal alterations on the property to accommodate the use thereof as a church. Applicant contended that it had not given permission to the respondent for the construction of the alterations nor has it approved any plans in respect of the property being used as a place of worship.

[6] It is common cause that the respondent ignored the notices dated 24 October 2011 and 8 March 2012 addressed to it by the applicant calling upon it to cease all unauthorised alterations and continued with the construction work. The applicant submitted that the property was used in contravention of the applicable laws (the Scheme) as a place of worship for the following reasons:

6.1 There are insufficient parking provisions made for the members of the church on the property.

6.2 Parking across the street at the Doll House (neighbouring premises) and along Louis Botha Avenue was used before, during and after church on Wednesdays and Sundays.

6.3 The lack of sufficient parking created severe traffic congestion in the area which constituted various dangers on the major road due to vehicles, taxis and buses having parked along Louis Botha Avenue in circumstances where no such parking is permitted or could be accommodated.

[7] It appears from the papers that approval was never obtained for the erection of alterations on the property and no occupation certificate in respect of the property has been issued. Currently the approved building plan in existence is for a warehouse. No application for the relaxation of the parking as well as change of use have been approved.

[8] The applicant further submitted that unapproved building plans submitted by the respondent would not be able to be approved until approval has been obtained in accordance with the Scheme as there is insufficient parking on the property. It follows therefore that if there is insufficient parking provisions made there is no compliance with the Scheme if the property is used as a church.

[9] The applicant further submitted that although the present zoning (“Business 1”) permits the usage of the property for purposes of a church under clause 14 of the Scheme, the property can only be used

as such once the building plans are approved and all the requirements of the Scheme, including parking have been complied with.

[10] In terms of the Scheme 0.15 parking bays per seat are required, and if there are no seats, 100 parking bays per square meter are required. The applicant submitted therefore that 63 parking bays provided by the respondent on the property plus 80 parking bays off-site (at the Doll House) are inadequate. Respondent is required to provide 226 parking bays on site in order to comply with the Scheme.

[11] The respondent denied any contraventions of the Act and the Regulations and contended that the applicant relied on incorrect provisions of the Act to make out a case for non-compliance and demolition of the structures, further that the contravention notices are incomplete and do not satisfy the requirements for enforcement.

Issues for determination

[12] The first issue to be determined by the court is whether the respondent violated the provisions of the Act and the regulations promulgated thereunder as well as the Scheme, secondly whether the interdict should be granted.

Applicable Legislation

[13] Section 4(1) of the Act provides that no person shall without the prior approval in writing of the local authority, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of the Act.

[14] The alterations in the present case were buildings in respect of which the plans and specifications were required to be drawn and submitted in terms of the Act. The erection of the alterations was clearly unlawful.

[15] The interdict and restraining application is premised on the fact that the respondent has erected alterations to the property and changed its use.

[16] One of the Act’s main purposes, in providing for the laying-down of standards for plans and specifications and, in requiring plans to be approved by the local Authority, is to ensure that buildings will be safe and suitable for their intended use. The reason the Act forbids the erection of buildings without approved plans and provides for their demolition if they are unlawfully erected is, to prevent the existence of buildings which, because of the absence of approved plans, may cause tensions and clashes of interests within the community and be unsuitable for use.

[17] Clearly the municipal authorities have rights that need to be respected. It is the local authorities who are charged with the duty of enforcing the provisions of the approved scheme, by- laws and to apply the town planning scheme. The local municipality had no alternative but to approach the court for an interdict .For reasons advanced above I am persuaded that the applicant has made out a case for the relief sought.

Costs

[18] Insofar as the question of costs is concerned it was argued that respondent’s counsel and attorney, in view of their conduct, should be ordered to pay costs de bonis propriis.

[19] For a proper appreciation of the issues which arose before me, it is necessary to set out the background of the present matter in detail. The respondent has throughout the proceedings been represented by a firm of attorneys namely Mogotsi and Partners Inc. who throughout instructed Adv H.T Mokhine.

[20] In terms of the notice of motion dated 29 November 2012 the applicant sought an interdict and restraining order on the application to be heard on the 13th March 2013. The respondent had filed its notice of intention to oppose but failed to file its answering affidavit. On the 13th March 2013 the respondent failed to appear before court. Judgement by default was granted against it. On the 5th September 2013 the respondent applied for rescission of the order granted by default as well as condonation for the late filing of the answering affidavit. The applicant did not oppose the application.

[21] On the 2nd October 2013 the matter was set down for hearing on the opposed roll for the 28th October 2013. A notice of set down was duly served on the respondent’s attorney. The applicant duly served and filed its heads as well as the practice note as required by the Practice Directives of this Court. The respondent failed to file and serve same.

[22] On the date of the hearing of the matter counsel for the respondent (Adv Tubatsi) appeared and requested a postponement. He stated that he did not know who or where applicant’s counsel was. The matter was postponed sine die.

[23] On the same day at about 10h30 the applicant’s counsel appeared and asked that the matter be recalled. She gave an acceptable explanation of her lateness. Before the matter could be recalled the court requested her to get hold of the respondent’ counsel so that both counsel should approach the jugde in chambers in order to be informed of the time the matter would be heard.

[24] Counsel for the respondent could not be traced as there were no details of him in the court file. Adv H T Mokhine whose contacts and particulars were in the court file was not the one representing the respondent. I then requested my registrar to call the instructing attorney (Mr Mogotsi) to chambers to assist in clearing the confusion. During lunch time Mr Mogotsi attended at court’s chambers alone. I ordered him to be in attendance in court at 14h00 with his counsel. When the court resumed at 14h00 Mr Mogotsi was absent. Counsel who appeared on behalf of the respondent in the morning was present. The matter was recalled for hearing of argument. Counsel for the respondent there and then without any formal application applied for a postponement of the matter. He stated that he received instructions on Friday and was not ready to proceed .Counsel for the applicant strongly opposed the application for a postponement. Having regard to the history of the matter the court ruled against a postponement and ordered the parties to proceed.

[25] Only applicant’s counsel argued the matter. Respondent’s counsel made no submissions to the court. During argument the applicant’s counsel asked for a punitive costs order against counsel for respondent and his attorney because of the manner in which they conducted themselves. Respondent’s counsel was invited to make submissions regarding the application for a punitive costs order sought against him and his attorney. He had no submissions to make. The matter was adjourned until the next morning in order to allow him the opportunity to consult with Mr Mogotsi and to secure his (Mr Mogotsi) attendance in court so that he could present his version pertaining to the proceedings of the previous day, seeing that a costs order is also sought against him.

[26] The next morning counsel for the respondent appeared. Mr Mogotsi was still absent. Respondent’s counsel had no further submissions to make except to indicate to that he had apologised to applicant’s counsel for what happened on the previous day.

[27] Applicant’s counsel upon realising that respondent’s counsel was junior abandoned her request for a costs order against him but persisted with a costs order against the attorney.

[28] In this case it is my considered view that although the application for postponement was applied for by the respondent’s counsel, the postponement was occasioned by professional negligence of the respondent’s attorney and counsel. They failed to ensure that heads of argument and practice note were served and filed, they also failed to communicate with applicant’s attorney or counsel about the appointment of new counsel. The respondent’s attorney also failed to attend court even when ordered to do so by the court. I view this conduct as reprehensible. Failure by the respondent’s counsel to come to court prepared indicates lack of concern and slackness in the handling of the respondent’s case .An application for a postponement must be made timeously as soon as the circumstances giving rise to such an application become known to the applicant. In this matter respondent’s attorney or counsel failed to do so.

[29] When awarding costs, the court has a discretion which it must exercise judiciously. The decision a court takes is a matter of fairness to both parties. The court must take into account the peculiar circumstances of each case , carefully weigh the issues at hand, the conduct of the parties as well as any other circumstances which may have a bearing on the issue of costs.

[30] Generally speaking, costs de bonis propriis will be ordered against an attorney only on reasonably serious cases, e.g. flagrant and gross disregard or non-observance of the Rules of Court.

[31] In Khan v Mzovuyo Investments Pty. Ltd. 1991 (3) SA 47 (TK) at 48G- I, an order to pay wasted costs de bonis propriis against the plaintiff’s attorney was granted where his conduct was unreasonable and negligent, and his handling of his client’s

case was slack and apparently characterised by lack of concern. See also Darries v Sheriff, Magistrate Court Wynberg 19 98 (3) SA 34 (SCA)

[32] As already pointed out above, the respondent’s counsel and attorney acted in a manner that can be characterised as unreasonable and negligent. The manner in which they handled the application herein was slack and showed lack of concern.

[33] It is my considered view therefore that this is an appropriate case for an order that the respondent’s attorney and counsel pay the costs of the application de bonis propriis.

Order

[34] In the result I make the following order:

1. The respondent is hereby interdicted and restrained from permitting or causing the use of the property described as Erf 5 Rouxville Township situated at 440-442 Louis Botha Avenue, Rouxville, Gauteng, in contravention of the zoning “Business 1” in terms of the Scheme read with the present approved building plans as a place of worship.

2. The respondent is ordered to comply with the National Building Regulations and Standards Act 103 of 1977 and Regulations promulgated thereunder in respect of the property mentioned in paragraph 1.

3. The Respondent is to forthwith comply to the applicant’s satisfaction with the Town Planning and Township Ordinance 15 of 1986 and the Johannesburg Town Planning Scheme 1979 in terms of the property, in particular reference to the use of the property for purposes permitted in terms of the zoning “Business 1” read with the present approved building plans.

4. The respondent is to forthwith cause the demolition of the unauthorised alterations erected and present on the property, which do not comply with the Act and Regulations and which are not in accordance with the present approved building plans, and remove the rubble resulting from such demolition from the property.

5. Failing compliance in full by the respondent with the terms and the provisions of the order contained in paragraphs 1-4 above within 5 days from the granting of this order, the sheriff of the above court is authorised and directed to demolish all unauthorised alterations and remove and discard the rubble.

6. The respondent is to pay the costs of the necessary demolition.

7. The costs of the application to be paid by respondent’s attorney of record and counsel jointly and severally the one paying the other to be absolved de bonis propriis.

8. The Registrar of the High Court is ordered to forward a copy of this judgment to the Johannesburg Bar Council and the Law Society of the Northern Province for their attention.

_____________________________________

M B MAHALELO

ACTING JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

Appearances

FOR THE APPLICANT – ADV STRYDOM

INSTRUCTED BY – RAMUSHU, MASHILE ,TWALA INC

FOR THE RESPONDENT – ADV TUBATSI

INSTRUCTED BY – MOGOTSI AND PARTNERS INC