Esquire Consulting and Marketing CC and Others v Sea Glades Holdings (Pty) Ltd and Others (1315/2016) [2017] ZASCA 167 (30 November 2017)

Esquire Consulting and Marketing CC and Others v Sea Glades Holdings (Pty) Ltd and Others (1315/2016) [2017] ZASCA 167 (30 November 2017)

The Supreme Court of Appeal held that the rezoning of erf 3306 was not a standard rezoning but formed part of the original simultaneous application for subdivision and rezoning, merely deferred for further information. The two-year utilisation period in section 16(2)(a) of LUPO did not apply. Even if it did, the property was utilised for business purposes within the relevant period, as substantial improvements and infrastructure were effected in anticipation of business use. The appellants failed to establish that the business use of erf 3306 was unlawful. The application for an interdict was correctly dismissed by the court a quo, and the appeal was dismissed with costs.

Citation
[2017] ZASCA 167
Parties
Appellant: Esquire Consulting and Marketing CC; Appellant: Christo Stockenström; Appellant: Gerhardus Hager Dreyer NO; Appellant: Francis Delina Dreyer NO; Appellant: Six Fifteen Investments (Pty) Limited; Appellant: Thomas Robert Peacock Edwards; Appellant: Marthinus Jakobus Rudolf Marx; Appellant: Dr Ivan Marx Medforum Incorporated; Appellant: Bharatkumar Kantilal Mehta; Appellant: Ashley Hoden Parker NO; Appellant: Beverley Joan Parker NO; Appellant: Alan Roland Cousins NO; Appellant: Cornelis Abraham Troskie NO; Appellant: Stephanus Francois Nel NO; Appellant: Jacobus Gerhardus Troskie NO; Appellant: Cedric John Peterson NO; Appellant: Jemma Ann Surrier; Respondent: Sea Glades Holdings (Pty) Ltd; Respondent: Nevil Leighton Hulett; Respondent: Kouga Municipality; Respondent: Eastern Cape Liquor Board
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2017
Case Number
1315/2016
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division of the High Court, Port Elizabeth
Outcome
Appeal dismissed with costs.
Judges
Ponnan, Bosielo, Leach, Mathopo, Ploos van Amstel
Legal Topics
Land Use Planning Ordinance, Rezoning and Subdivision, Municipal Zoning Scheme, Interdict, Utilisation Period, Principle of Legality
Land and Property Administrative Law Civil Procedure Land Use Planning Ordinance Rezoning and Subdivision Municipal Zoning Scheme Interdict Utilisation Period +1 more

Case Brief

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Parties

Esquire Consulting and Marketing CC

Appellant

Christo Stockenström

Appellant

Gerhardus Hager Dreyer NO

Appellant

Francis Delina Dreyer NO

Appellant

Six Fifteen Investments (Pty) Limited

Appellant

Thomas Robert Peacock Edwards

Appellant

Marthinus Jakobus Rudolf Marx

Appellant

Dr Ivan Marx Medforum Incorporated

Appellant

Bharatkumar Kantilal Mehta

Appellant

Ashley Hoden Parker NO

Appellant

Beverley Joan Parker NO

Appellant

Alan Roland Cousins NO

Appellant

Cornelis Abraham Troskie NO

Appellant

Stephanus Francois Nel NO

Appellant

Jacobus Gerhardus Troskie NO

Appellant

Cedric John Peterson NO

Appellant

Jemma Ann Surrier

Appellant

Sea Glades Holdings (Pty) Ltd

Respondent

Nevil Leighton Hulett

Respondent

Kouga Municipality

Respondent

Eastern Cape Liquor Board

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division of the High Court, Port Elizabeth

Legal Issues

  1. 1 Whether erf 3306 is zoned for business purposes under the Land Use Planning Ordinance 15 of 1985 (LUPO).
  2. 2 Whether the two-year utilisation period in section 16(2)(a) of LUPO applies to the rezoning of erf 3306.
  3. 3 Whether the property was utilised for business purposes within the relevant period as envisaged by LUPO.

Ratio Decidendi

The Supreme Court of Appeal held that the rezoning of erf 3306 was not a standard rezoning but formed part of the original simultaneous application for subdivision and rezoning, merely deferred for further information. The two-year utilisation period in section 16(2)(a) of LUPO did not apply. Even if it did, the property was utilised for business purposes within the relevant period, as substantial improvements and infrastructure were effected in anticipation of business use. The appellants failed to establish that the business use of erf 3306 was unlawful. The application for an interdict was correctly dismissed by the court a quo, and the appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.