Emilel Investments (Pty) Ltd v Silvestri and Others (080/2012) [2012] ZASCA 181 (29 November 2012)

Emilel Investments (Pty) Ltd v Silvestri and Others (080/2012) [2012] ZASCA 181 (29 November 2012)

The Supreme Court of Appeal held that the operation of the Gianluca Vialli soccer centre and the craft market on the school property constituted unlawful commercial use in breach of the applicable zoning scheme regulations. The property was zoned general residential, and while use as a school was a permitted right, the operation of a soccer centre and market required municipal consent as a 'place of instruction', which had not been obtained. The activities were primarily commercial and involved public participation and spectating, not instruction. The appellant's reliance on historical zoning rights and the South African Schools Act was rejected, as compliance with zoning laws remained...

Citation
[2012] ZASCA 181
Parties
Appellant: Emilel Investments (Pty) Ltd; Respondent: Maria Gioconda Linda Giorgia Silvestri; Respondent: Ian du Plessis; Respondent: Barry William Gie; Respondent: Sea Point High School; Respondent: Governing Body Sea Point High School; Respondent: David van Rensburg; Respondent: Victory Tickets 943 CC; Respondent: The City of Cape Town; Respondent: The MEC (Minister) for Education, Western Cape Provincial Government; Respondent: The MEC (Minister) for Transport and Public Works, Western Cape Provincial Government
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2012
Case Number
080/2012
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court
Outcome
Appeal dismissed with costs; cross-appeal upheld with costs; order of the court below replaced.
Judges
Lewis, Cachalia, Malan, Petse, Plasket
Legal Topics
Zoning Scheme Regulations, Unlawful Land Use, Municipal Consent, Interdict, Costs Order
Land and Property Administrative Law Civil Procedure Zoning Scheme Regulations Unlawful Land Use Municipal Consent Interdict Costs Order

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Parties

Emilel Investments (Pty) Ltd

Appellant

Maria Gioconda Linda Giorgia Silvestri

Respondent

Ian du Plessis

Respondent

Barry William Gie

Respondent

Sea Point High School

Respondent

Governing Body Sea Point High School

Respondent

David van Rensburg

Respondent

Victory Tickets 943 CC

Respondent

The City of Cape Town

Respondent

The MEC (Minister) for Education, Western Cape Provincial Government

Respondent

The MEC (Minister) for Transport and Public Works, Western Cape Provincial Government

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court

Legal Issues

  1. 1 Whether the operation of the Gianluca Vialli soccer centre and the craft market on school property contravened zoning scheme regulations.
  2. 2 Whether the activities constituted unlawful commercial use of land zoned for general residential purposes.
  3. 3 Whether the governing body of the school could permit such use under the South African Schools Act.

Ratio Decidendi

The Supreme Court of Appeal held that the operation of the Gianluca Vialli soccer centre and the craft market on the school property constituted unlawful commercial use in breach of the applicable zoning scheme regulations. The property was zoned general residential, and while use as a school was a permitted right, the operation of a soccer centre and market required municipal consent as a 'place of instruction', which had not been obtained. The activities were primarily commercial and involved public participation and spectating, not instruction. The appellant's reliance on historical zoning rights and the South African Schools Act was rejected, as compliance with zoning laws remained...

Court Disposition

Appeal dismissed with costs; cross-appeal upheld with costs; order of the court below replaced.

Orders

  • The appeal is dismissed with costs.
  • The cross-appeal is upheld with costs.