Jacobs and Another v Transand (Pty) Ltd (11554/2014) [2014] ZAWCHC 172 (14 November 2014)

Jacobs and Another v Transand (Pty) Ltd (11554/2014) [2014] ZAWCHC 172 (14 November 2014)

The court found that the applicants established a clear right to interdict the mining activities, as the property was determined to be zoned Agriculture Zone 1 in 1999, which does not permit mining. The evidence showed that no rezoning or departure permitting mining had been granted since the lapse of the temporary departure in 2005. The mining activities conducted by Transand on the property are unlawful and constitute a contravention of the Land Use Planning Ordinance and scheme regulations, amounting to a criminal offence. The pactum de non petendo in the 2004 agreement does not preclude the applicants from seeking relief, as it cannot override constitutional rights and was not...

Citation
[2014] ZAWCHC 172
Parties
Applicant: Daniel Jacobus Lukas Jacobs; Applicant: Louretha Jacobs; Respondent: Transand (Pty) Ltd; Respondent: Mossel Bay Municipality
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
14 November 2014
Case Number
11554/2014
Procedural Posture
Urgent Application / Final Interdict Application After Rule Nisi
Outcome
Application granted. Final interdict issued against the first respondent.
Judges
N J Yekiso
Legal Topics
Land Use Planning Ordinance, Zoning and Land Use Rights, Final Interdict, Municipal Powers, Contravention of Scheme Regulations, Pactum De Non Petendo
Land and Property Administrative Law Civil Procedure Land Use Planning Ordinance Zoning and Land Use Rights Final Interdict Municipal Powers Contravention of Scheme Regulations +1 more

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Parties

Daniel Jacobus Lukas Jacobs

Applicant

Louretha Jacobs

Applicant

Transand (Pty) Ltd

Respondent

Mossel Bay Municipality

Respondent

Procedural Posture

Urgent Application / Final Interdict Application After Rule Nisi

Legal Issues

  1. 1 Whether the applicants have established a clear right to interdict mining activities on their property.
  2. 2 Whether the property is zoned to permit mining under the Land Use Planning Ordinance and scheme regulations.
  3. 3 Whether the mining activities conducted by the first respondent are unlawful and constitute an offence under the Land Use Planning Ordinance.

Ratio Decidendi

The court found that the applicants established a clear right to interdict the mining activities, as the property was determined to be zoned Agriculture Zone 1 in 1999, which does not permit mining. The evidence showed that no rezoning or departure permitting mining had been granted since the lapse of the temporary departure in 2005. The mining activities conducted by Transand on the property are unlawful and constitute a contravention of the Land Use Planning Ordinance and scheme regulations, amounting to a criminal offence. The pactum de non petendo in the 2004 agreement does not preclude the applicants from seeking relief, as it cannot override constitutional rights and was not...

Court Disposition

Application granted. Final interdict issued against the first respondent.

Orders

  • The first respondent is interdicted and restrained from conducting or permitting the conducting of any mining activities on portion 11 (a portion of Portion 1) of the farm Hartenbosch 217, known as Kleingeluk, in the district of Mossel Bay, Western Cape, unless and until authorisation has been granted under the Land...
  • The first respondent is ordered to pay the costs of these proceedings, on a party and party scale, including costs consequent upon employment of two counsel.