Educated Risk Investments 165 (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality and Others (41961/12) [2014] ZAGPJHC 451 (6 May 2014)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 41961/12

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

6/5/2014

In the matter between:

EDUCATED RISK INVESTMENT 165 (PTY) LTD First

Applicant

FIFTH SEASON INVESTMENTS 99 (PTY) LTD Second

Applicant

LAGERWEY INVESTMENT COMPANY (PTY) LTD Third

Applicant

NEL, NICOLAAS JACOBS

t/a N J NEL DEVELOPMENTS Fourth

Applicant

and

EKURHULENI METROPOLITAN MUNICIPALITY First

Respondent

LIDWALA CONSULTING ENGINEERS (SA) (PTY) LTD Second

Respondent

READIRA REFUGE CERVICES CC Third

Respondent

JUDGMENT

MABESELE, J:

[1] The purpose of this application is to interdict the First Respondent (Ekurhuleni Metropolitan Municipality) from continuing with the development on its property.

[2] The First and Fourth Applicants own properties in Strubenvale Extension 2, Township, adjacent to the First Respondent's property

known as Payneville Extension1.

[3] The Applicants obtained an interim order on 5 December 2012, directing the First Respondent not to allow any person to utilise the water and sewer network systems, toilet structures, road and storm water structures or any other structures or service on the property whether temporarily or at all, pending finalisation of this application.

[4] Subsequent to an interim order being granted in favour of the Applicants, the Applicants supplemented their papers, seeking amended relief.

[5] The relief now sought by the Applicants is that:

5.1 First Respondent's decision to subdivide the property and to approve the subdivision of the property as set out in the First Respondent's letter dated 8 February 2012, to be reviewed and set aside.

5.2 Alternatively to 5.1, First Respondent to be directed to comply with all the conditions applicable to the approval of the subdivision of the property as set out in First Respondent's letter of approval dated 8 February 2012.

5.3 The First Respondent be directed:

5.3.1 not to use the property without complying with conditions;

5.3.2 not to allow any person to occupy or use any: erf or portion of the property prior to compliance by the First Respondent with the conditions;

5.3.3 not to use or allow any person to erect any structures on the property or any portion thereof contrary to the provisions of the Springs Town Planning Scheme ("the Scheme') and the conditions; and

5.3.4 not to use or allow any person use the property or any portion thereof contrary to the provisions of the scheme.

5.4 The toilet structures erected by the First Respondent on the property to be declared unlawful.

5.5 First Respondent be directed to, with any other Respondents opposing the application, pay the costs of the application jointly and severally on the scale as between attorney and client, inclusive of costs consequent upon the employment of two counsel and the costs of expert witnesses.

[6] The Applicants are in the process of developing their properties in Strubenvale Extension 2, Township for sale to persons in the upper lower to middle income market.

[7] The applicants base their case for a final interdict on unlawful establishment of informal settlement on the property of the First Respondent thereby affects their rights adversely.

[8] The dispute arises from two issues. The first issue is whether the First Respondent's decision to establish an informal settlement on its property is unlawful. The second, and main, is whether the Applicants have standing to approach the court for the enforcement of the Scheme.

[9] For the sake of convenience I deal first with the second and main issue.

[10] It is common cause between the parties that the Springs Town Planning Scheme, 1996 ('the Scheme") is an approved Scheme in respect of both Payneville Extension 1 and Strubenvale Extension 2. For this reason the Applicants argued that the Scheme is enacted in their interests thus entitle them to interdict the First Respondent for unlawful use of its property. I was referred to the case of lntercape Ferreira Mainliner (PTy) LTD and Others V Minister of Home Affairs 2010 (5) SA 367(WCC) at 400H wherein it is stated that town planning and zoning restrictions are enacted in the interests of a class of persons, namely the residents of the area, and that such residents thus have standing to interdict violations without proof of actual harm. ·

[11] In Roodepoort-Maraisburg Town Council V Eastern Properties (PTY) Ltd 1933 AD 87 Stratford JA said the following:

"Where it appears either from a reading of an enactment itself or from that plus a regard to surrounding circumstances that the Legislature has prohibited the doing of an act in the interest of any person or a class of persons, the intervention of the Court can be sought by such person to enforce the prohibition without proof of special damage" (See also BEF (Pty) Ltd V Cape Town Municipality and Others 1983(2)SA 387 at 400-401)

[12] In view of the above the Applicants' argument that they have standing to approach the court for the enforcement of the Scheme has merit. Counsel for the First Respondent was unable to argue otherwise. Therefore the Applicants' argument stands and is accepted.

[13] This brings me to the issue regarding unlawfulness.

[14] The First Respondent intends allowing people to erect informal structures temporarily on the stands allocated to them on its

property pending construction of a top structure, once it has received funds from Gauteng Provincial Government. The people who

should be accommodated on the property currently reside in Payneville Extension 3 which is located next to tailing dam where the build-up of radon gas constitutes health hazard.

[15] The Applicants' argument is that the structures are unlawful in that they do not comply with the Scheme, the Town Planning and Townships Ordinance, 15 of 1986 ('Ordinance') and the conditions under which the application for the development of the property was approved.

[16] The clauses of the Scheme and sections of the Ordinance which, according to the Applicants, were contravened are clauses 11.4 (read with Table 8), 13,18 and 27and sections 19 and 20.

[17] It was urged that the structures contravened clause 11.4(read with Table B) in that they are not dwelling houses but shacks. Clause 11.4(read with Table B) makes provision for the erection of dwelling houses only on the property of the First Respondent because the property is zoned residential 1. Therefore, said the Applicants, the First Respondent should have applied in terms of clause 13(read with 18) for permission to use the property for purposes other than residential. The shacks, it was said, are not dwelling houses.

[18] An argument in the contrary was that clauses 13 and 18 are not applicable in the present case because the First Respondent does not intend to use its property for purposes other than residential. The structures, said the First Respondent, are intended to be used as residential houses and shacks are considered to be houses.

[19] Clause 3 of the Scheme defines a dwelling house as a single, free­ standing dwelling unit and can include a "second dwelling unit"

[20] A dwelling unit is defined as an interconnected suite of rooms which does not include more than one kitchen, designed for occupation and use by a single family and which may also include such outbuildings and servants' quarters as are ordinarily incidental thereto.

[21] A shack is a single free-standing dwelling unit which can be divided into rooms and may not include more than one kitchen and may be used for occupation by a single family. Therefore a shack qualifies as a dwelling house· in terms of clause 3. It stands to reason therefore that the First Respondent's property remains residential 1.

[22] Even if a shack could not fit the definition of a dwelling house in terms of clause 3 the First Respondent's argument that it intends using its property for residential purposes only thus comply with clause 11.4(read with Table B) remained unchallenged. Therefore the argument that the First Respondent did not act in accordance with clauses 13 and 18 has no merit. The result is that clause 11.4 (read with Table B) was not contravened.

[23] Assuming the First Respondent contravened clause 11.4 (read with Table B). The question would then be whether its conduct is grossly unreasonable, taking into account its constitutional obligation to provide houses (within available "limited" financial resources) to multitudes of its residents while on the same breath intends making the area safe and healthy (as demonstrated below) Clearly, the First Respondent's conduct would not have been grossly unreasonable.

[24] The intention of the First Respondent to construct top structures to replace shacks and to construct a stormwater attenuation dam to regulate the natural flow of water and to grade roads is to my mind an effort to promote safety, health, convenience and good order, in order to comply with the general purpose of the Scheme as outlined in section 19 of the Ordinance.

[25] Section 19 provides that:

"The General purpose of a town-planning scheme shall be the co-ordinated and harmonious development of the area to which it relates in such a way as will most effectively tend to promote the health, safety, good order, amenity, convenience and general welfare of such area ......... ............ .. .... ."

[26] For as long as the general purpose of the Scheme is intended to be achieved as demonstrated above the First Respondent, acting within available 'limited' financial resources, may not be expected, in my view, to comply with every clause of the Scheme in that such expectation may defeat its purpose to achieve its constitutional mandate to provide houses (Unlawful Occupiers, School Site V City of Johannesburg 2005(4) SA 199(SCA) at 209 G-1). Compliance with the general purpose of the Scheme suffices in my view, and it shows intention by the First Respondent to operate within the law.

[27] A further argument was that the First Respondent did not invite the Applicants to make representations as provided in section 20(6) of the Ordinance before the First Respondent resolved to use its property. The response was that the First Respondent was not obliged to extend invitation to the Applicants when the property was subdivided because notices were given to the public when the property was proclaimed a township. Despite this persuading argument it would have been proper for the First Respondent to have given notices to allow public participation. The reason being that the previous notices were given almost ten years ago, according to the First Respondent's counsel. Having said so, I am unable, on the argument presented on behalf of the First Respondent, to find that failure by the First Respondent to give notice to the Applicants contravened section 20. Even if the section was contravened, that would not be as serious to justify bringing to a halt a project which has already taken off the ground on the property of the First Respondent with the sole intention to meet constitutional obligation.

[28] The Applicants argued lastly that the development be declared unlawful because the conditions attached to the approval of the

application, per letter dated 8 February 2012, to develop the property were not complied with. was referred to the case of lntercape Ferreira Mainliner V Minister of Home Affairs, supra, at 398 D-E(wherein mention is made that the use of property becomes unlawful if the conditions are not satisfied) and clause 27 of the Scheme.

[29] This clause provides that:

"Where permission to erect any building or execute any works or to use any property for any particular purpose or to do any other act or thing, is granted under the Scheme, and conditions have been imposed, the conditions shall have the same force and effect as if they were part of the Scheme and shall be regarded as though they were part of the Scheme".

[30] In the lntercape Ferreira Mainliner case, supra, the First Respondent used the premises contrary to the consent given after application was approved for the transfer of a conditional use rights for a "place of assembly" as offices for the Frist Respondent.

[31] My understanding of the above-mentioned case is that the offices were utilised without compliance with certain conditions as per building plans (plan 3) and without approval of the revised building plan.

[32] In the present case on the other hand the First Respondent's property had not been utilised (occupied) yet when the developments thereon were brought to a halt per interim order. At that stage the First Respondent had already complied with conditions such as construction of sewer and water reticulation on the property. There is no evidence that the Frist Respondent intended not to comply with the rest of the conditions. The project of erecting houses on the property is at its infant stage.

[33] I may add to say that no mention is made in the letter dated 8 February 2012 that all the conditions should be complied with before the First Respondent accommodates people on its property. This is understandable in my view because the project is huge and that certain conditions in the letter such as the installation of the road signs, installation of access gates or booms and paving of pedestrian sidewalks on the property may be complied with after the property has been occupied. The argument that such conditions were not complied with whereas the project has just taken off the ground cannot stand. In fact counsel for the Applicants stated that certain minor conditions in the letter dated 8 February 2012 need not necessarily be complied with. Counsel argued, however, that there should be substantial compliance with the conditions before the property is occupied. Counsel was unable, unfortunately, to quantify such "substantial compliance". Nevertheless it was never intended in the said letter that all the conditions should be compiled with at the beginning of the project or before the stands are occupied on the property.

[34] For these reasons it cannot be said that the First Respondent failed to comply with the conditions attached to the letter dated 8 February 2012.

[35] The result is that the Applicants were unable to persuade me to come to the conclusion that the erection of the structures on the property of the First Respondent is unlawful. Therefore the application should be dismissed.

[36] In the result, I make the following order:

1. The application is dismissed.

2. The Applicants are ordered to pay costs.

______________________

M. M. MABESELE

(JUDGE OF THE GAUTENG LOCAL DIVISION)