Frater NO and Others v Drakenstein Municipality and Another (6214/2010, 19763/2010) [2011] ZAWCHC 149 (17 February 2011)

Frater NO and Others v Drakenstein Municipality and Another (6214/2010, 19763/2010) [2011] ZAWCHC 149 (17 February 2011)

The court found that the order made against the Trust was prohibitory, not mandatory, and that the Trust had unlawfully permitted the operation of a restaurant on its premises without the requisite statutory approvals. The lease concluded with Windfall 32 Restaurant (Pty) Ltd was invalid, as the Trust could not pass lawful rights it did not possess. Recognition of such a lease would sanction the very conduct the legislature intended to prevent. The Trust's argument that it could not comply with the order due to the lease was rejected, as the lease itself was a nullity. The court held that non-compliance with the order could be enforced through contempt proceedings. There were no...

Citation
[2011] ZAWCHC 149
Parties
Applicant: Gerard Frater N.O.; Applicant: Yvette Frater N.O.; Applicant: Jacobus Petrus Rossouw N.O.; Applicant: The Gerard Frater Family Trust; Respondent: Drakenstein Municipality; Respondent: Diana Liebenberg
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 February 2011
Case Number
6214/2010 & 19763/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal From Order of 9 December 2010
Outcome
Application for leave to appeal dismissed with costs, including costs of two counsel.
Judges
Cloete
Legal Topics
Unlawful Land Use, Building Regulations, Prohibitory Interdict, Validity of Contract, Contempt of Court
Land and Property Civil Procedure Unlawful Land Use Building Regulations Prohibitory Interdict Validity of Contract Contempt of Court

Case Brief

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Parties

Gerard Frater N.O.

Applicant

Yvette Frater N.O.

Applicant

Jacobus Petrus Rossouw N.O.

Applicant

The Gerard Frater Family Trust

Applicant

Drakenstein Municipality

Respondent

Diana Liebenberg

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal From Order of 9 December 2010

Legal Issues

  1. 1 Whether paragraph 2 of the order is unenforceable against the Trust.
  2. 2 Whether the costs order against the Trust was appropriate.
  3. 3 Whether the lease concluded by the Trust was valid under statutory prohibitions.

Ratio Decidendi

The court found that the order made against the Trust was prohibitory, not mandatory, and that the Trust had unlawfully permitted the operation of a restaurant on its premises without the requisite statutory approvals. The lease concluded with Windfall 32 Restaurant (Pty) Ltd was invalid, as the Trust could not pass lawful rights it did not possess. Recognition of such a lease would sanction the very conduct the legislature intended to prevent. The Trust's argument that it could not comply with the order due to the lease was rejected, as the lease itself was a nullity. The court held that non-compliance with the order could be enforced through contempt proceedings. There were no...

Court Disposition

Application for leave to appeal dismissed with costs, including costs of two counsel.

Orders

  • The Trust's application for leave to appeal is dismissed.
  • The Trust is ordered to pay the costs of the application, including the costs of two counsel.